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FOREWORD 

This  volume  is  an  exact  photo-reproduction  of  an  original  copy  of 

DECISIONS 

of  the 

SUPERIOR  AND  SUPREME  COURTS 

of 

NEW  HAMPSHIRE, 

From  1802  to  1809,  and  From  1813  to  1816 


JEREMIAH  SMITH, 
Chief  Justice  of  those  Courts 


As  an  original  is  practically  unobtainable,  this  reprint  is  offered 
to  enable  Law  Libraries  to  complete  their  collection  of  New 
Hampshire  Reports. 

The  reproduction  follows  the  original  in  every  detail  —  and  no 
attempt  was  made  to  correct  errors  and  defects  in  typography. 


Buffalo,  N.  Y.  DENNIS  &  CO.,  INC. 

October,  1954 


DECISIONS         ^^!i^ 

mi. 


OP    THE 


SUPERIOR  AND  SUPREME  COURTS 


OF 


NEW    HAMPSHIRE, 


From  1802  to  1809,  and  from  1813  to  1816. 


SELECTED   FROM    THE   MANUSCRIPT   REPORTS    OF    THE   LATE 

JEREMIAH    SMITH, 


CHIEF    JUSTICE    OF    THOSE    COURTS. 


WITH    EXTRACTS    FROM   JUDGE    SMITH'S    MANUSCRIPT 
TREATISE    ON    PROBATE    LAW, 

AND    FROM    HIS    OTHER    LEGAL    MANUSCRIPTS. 


BOSTON: 
LITTLE,   BROWN,  AND  COMPANY. 

1879. 


Entered  according  to  Act  of  Congress,  in  the  year  1879,  by 

LITTLE,    BROWN,    AND    COMPANY, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Cambridge: 
Press  of  John  Wilson  and  Son. 


JUDGES 

OF 

THE    SUPERIOR    COURT    OF    JUDICATURE/ 

Fall  Circuit,  1802,  to  Spring  Circuit,  1809. 


JEREMIAH  SMITH Chief  Justice. 

TIMOTHY   FARRAR 

(Resigned,  January,  1803.) 

PAINE   WINGATE 

ARTHUR   LIVERMORE  ^ Associate  Justices. 

WILLIAM   KING   ATKINSON 

(Appointed,  April  26,  1803. 
Resigned,  1805. ) 


JUDGES  OF   THE   SUPREME  JUDICIAL  COURT, 
July  12,  1813,  to  June  27,  1816. 

JEREMIAH  SMITH Chief  Justice. 

ARTHUR    LIVERMORE  J 

CALEB    ELLIS  C Associate  Justices. 

(Died  May,  1816.)  ) 


1  This  was  the  style  of  the  highest,  or  Sui)reme,  Court  of  New  Hampshire  until 
1813.  The  terms  "  Superior  Court  "  and  "  Supreme  Judicial  Court"  "were  applied  indis- 
criminately, by  the  framers  of  the  Constitution,  to  the  highest  judicial  tribunal  of  the 
State."  —ifeporfer's  iVbte,  63  N.  H.  634. 


PREFACE. 


The  decisions  printed  in  this  volume  have  been  selected 
from  the  manuscript  reports  and  legal  papers  of  the  late 
Jeremiah  Smith,  Chief  Justice  of  New  Hampshire  from  1802 
to  1809,  and  from  1813  to  1816. 

The  manuscript  reports  of  decisions  prior  to  1813  are  in 
bound  volumes.  The  decisions  from  1813  to  1816  have  been 
found  in  the  files  of  papers  used  by  Judge  Smith  at  the  so- 
called  "  Law  Terms."  It  is  possible  that  the  opinions  in 
these  files  may,  in  some  instances,  represent  only  the  individ- 
ual views  of  a  single  judge,  and  not  the  reasons  which  influ- 
enced a  majority  of  the  court. 

It  was  Judge  Smith's  custom  to  write  the  text  of  his  opin- 
ions and  reports  on  only  one  side  of  the  paper.  Upon  the 
opposite  blank  pages  he  frequently  made  notes,  sometimes  at 
a  date  long  subsequent  to  the  decision.  In  the  present  publi- 
cation some  of  these  notes  have  been  omitted,  and  others  have 
been  incorporated  with  the  text ;  but  by  far  the  larger  part 
are  printed  in  their  original  form  as  notes,  and  are  referred  to 
by  letters  of  the  alphabet.  Notes  by  the  compiler  (other  than 
head  notes)  are  referred  to  by  figures. 

Authorities  (some  of  them  of  later  date  than  the  decision) 
were  occasionally  cited  in  the  margin  of  the  manuscript.  These 
have  now  been  inserted  in  the  text,  but  probably  not  always 
in  their  appropriate  place.  If  an  authority  seems  inapplicable 
to  the  sentence  where  it  is  cited,  it  will  generally  be  found 
relevant  to   the  sentence   next  before   or  next   after.     It   is 


vi  PREFACE. 

believed  that  some  of  the  authorities  in  the  margin,  as  well  as 
some  of  those  in  the  notes,  were  not  cited  by  the  author  with 
the  idea  that  they  sustained  the  text. 

In  transcribing  the  manuscript  for  the  press,  some  obvious 
clerical  errors  have  been  corrected,  and  the  modern  spelling 
has  generally  been  substituted  for  the  more  ancient.  In  the 
division  of  the  matter  into  paragraphs,  numerous  changes  have 
been  made  ;  and  so  in  regard  to  the  use  of  capital  letters.  For 
much  of  the  punctuation  the  compiler  is  responsible,  many 
of  the  original  manuscripts  being  greatly  deficient  in  that 
respect. 

The  head  notes  have  mostly  been  made  by  the  compiler, 
with  the  assistance  of  the  author's  Manuscript  Digest,  which 
contains  abstracts  of  the  decisions  prior  to  1813.  In  some 
instances,  the  head  notes  have  been  copied  verbatim  from 
this  Digest. 

Tiie  formal  prefix  ("  Smith,  C.  J.")  to  the  opinion,  and  the 
order  at  the  end  of  the  case,  have  sometimes  been  supplied 
by  the  compiler.  Interpolations,  by  the  compiler,  in  the 
statements  of  fact  and  in  opinions  are  generally  enclosed  in 
brackets  [     ]. 

In  this  volume  the  claim  of  originality  is  not  to  be  implied 
from  the  absence  of  quotation  marks.  The  manuscripts  were 
intended  for  the  author's  own  use,  not  for  publication.  Hence 
quotation  marks  were  rarely  used  to  distinguish  extracts  from 
other  writers. 

If  the  statements  of  fact  do  not  always  correspond  with  the 
records,  the  explanation  may  be  found  in  the  following  note 
appended  to  one  of  the  manuscript  volumes.  "  In  many  of 
the  cases  submitted  on  statement  of  fact,  additions  have  been 
made  by  the  Court  before  judgment  or  opinion  declared,  with 
the  consent  of  both  parties." 

The  compiler  is  not  aware  that  any  written  opinions  of  the 
associate  justices  are  in  existence.  It  was  probably  the  gen- 
eral custom  of  their  predecessors  to  give  judgment  orally. 
Whether  they  adhered  to  the  old  custom  is  not  positively 
known,  though  there  is  some  reason  to  suppose  that  Judge 
Ellis  was  in  the  habit  of  writing  out  his  views.  In  this 
connection  it  seems  proper   to   say  that  Judge    Smith  bore 


PREFACE.  vii 

written  testimony  to  the  valuable  services  of  several  of  his 
colleagues. 

Among  the  cases  here  published  are  a  few  report^  of  jury 
trials,  where  no  question  was  reserved  for  subsequent  consid- 
eration. These  differ  from  ordinary  nisi  prius  reports,  in  the 
circumstance  that  the  trials  were  had  before  a  majority  of  the 
judges,  who  may  all  be  presumed,  in  the  absence  of  any  state- 
ment to  the  contrary,  to  have  assented  to  the  rulings  made. 

Until  1813  there  were  no  "  Law  Terms  "  as  contradistin- 
guished from  "  Trial  Terms."  Each  session  of  the  court 
was  required  to  be  held  by  a  majority  of  the  judges ;  and 
questions  of  law  and  fact  were  "  blended  together  on  the 
docket."  By  the  statute  of  June  24,  1813  (which  remained 
in  force  until  June  27, 1816),  all  the  Terms,  except  those  com- 
mencing in  November  and  December,  were  permitted  to  be  held 
by  a  single  judge  ;  and  all  actions  in  which  exceptions  were 
allowed  to  his  rulings  were  to  be  continued  to  the  November 
and  December  Terms  in  the  respective  counties,  there  to  be 
determined  by  a  majority  of  the  judges.  This  statute  also 
provided  that  "  all  motions  and  petitions  for  new  trials,  and 
all  appeals  from  judgments  or  decrees  of  judges  of  probate, 
and  all  questions  of  divorce  and  alimony,  questions  of  law  on 
statement  of  facts  agreed  by  the  parties,  or  special  verdicts, 
and  all  issues  in  law,"  should  be  "  heard,  tried,  and  deter- 
mined, exclusively  "  at  the  Terms  to  be  holden  in  November 
and  December.  Sects.  2,  3,  5,  and  6.  In  the  subsequent 
statute  of  Nov.  5,  1813,  §§  3  and  4,  the  expression  "  Law 
Term  "  is  applied  to  these  November  and  December  Terms ; 
as  it  is  also  in  the  index  of  the  edition  of  New  Hamp- 
shire Laws,  printed  in  1815. 

As  the  decisions  here  published  have  remained  unreported 
for  more  than  two  generations,  it  is  not  supposed  that  they 
can  now  be  regarded  as  "  authorities  "  in  the  ordinary  sense 
of  the  term.  The  selections  made  from  the  manuscripts  are 
not  confined  exclusively  to  cases  bearing  directly  on  points 
still  regarded  as  doubtful.  Some  cases  have  been  included 
which  decide  points  now  considered  elementary,  or  which 
have  since  been  made  the  subjects  of  legislative  action.  And, 
on  the  other  hand,  the  volume  contains  some  decisions  which 


viii  PREFACE. 

have  been  distinctly  overruled,  and  some  others  not  likely  to 
be  now  followed  by  the  courts.  It  was  thought  that  cases  of 
these  various  classes  might  be  of  value  as  throwing  light  "  on 
the  origin  and  growth  of  the  common  law  of  New  England, 
and  upon  the  causes  which  led  to  the  enactment  of  important 
statutes." 

At  the  close  of  the  Reports  will  be  found  extracts  from 
Judge  Smith's  Manuscript  Treatise  on  Probate  Law ;  also 
extracts  from  his  other  Legal  Manuscripts. 

February,  1879. 


TABLE    OF    CASES. 


Page 

Ames,  Jones  v 133 

Arms,  Henry  v 39 

Ayer,  Rhoads  V 112,  note,  113,  note 

Baker,  Twombly  v 122 

Bank,  Coos,  Jones  v 249 

Bank,  New  Hampshire  Strafford,  v.  Melleu 385 

Basset,  Currier  v 191 

Bean,  Kelley  v.  (cited) 157 

Bellows,  Chapman  v 127 

Bellows,  Eldridge  v 356 

Bellows  V.  Grant 115 

Bennet,  Thompson  v 327 

Boardman,  Gardner  v 360,  note 

Boynton  v.  Emerson 298 

Brattle  v.  Willard 374 

Bridge,  Proprietors  of  Oi'ford,  Moiey  v 91 

Brown,  Buzzell  v.  (cited) 360 

Brown,  Frost  v 113 

Brown  V.  Hoit 53 

Brown  v.  Langdou 178 

Brown  v.  Sheafe 134,  note 

Bryant  r.  Ela 396 

Burbank  v.  Norris        4-40 

Bush,  Eldridge  v 288 

Bush  V.  Mason        117 

Buzzell  V.  Brown  (cited) 360 

Caldwell  v.  Caldwell  (cited) 239 

Carnes,  Patterson  v.  (cited)        124 

Carpenter  v.  Wild 365 


X  TABLE   OF   CASES. 

Page 

Carr  v.  Ladd 45 

Cayford,  Cilley  v 150 

Chace  V.  Ellis 112,  note 

Chapman  v.  Bellows 127 

Chesley,  Frost  v 202 

Chesterfield  v.  Hart 350 

Cilley  V.  Cayford 150 

Clagett,  Lewis  v 187 

Clarke,  Little  v 100 

Clarke,  Robinson  v 147 

Clarke,  State  v.  (cited) 240 

Cooke,  Kingsbury  v 217 

Coos  Bank,  Jones  v 249 

Cornish,  Proprietors  of,  v.  Kenrick 270 

Couch  V.  Davis 136 

Currier  v.  Basset 191 

Cutts  V.  Frost 309 

Dame  v.  Twombly 262 

Darling,  Melven  v 74 

Davis,  Couch  v 136 

Doe  V.  Morrell 255 

Drew  V.  Munsey 317 

Eastman,  Wilson  v 287 

Edson,  Webster  v 370 

Ela,  Bryant  v 396 

Eldridge  v.  Bellows 356 

Eldridge  v.  Bush 288 

Ellis,  Chace  v 112,  note 

Emerson,  Boynton  v 298 

Erskine,  Henderson  v 36,  note 

Fisher,  Steward  v 60 

Flanders  v.  Herbert 205 

Footman  V.  Leathers 108,  note.  Ill,  note 

Foster,  Lewis  v 420 

French,  Kidder  v 155 

French  v.  Watkins 49 

Frost  V.  Brown 113 

Frost  V.  Chesley 202 

Frost,  Cutts  V 309 


TABLE   OF  CASES.  xi 

Page 

Gardner  v.  Boardman 360,  note 

Geer  V.  Hamblin 218 

Gilman  v.  Leavitt        304 

Gragg  V.  Starke  (cited) 499 

Grant,  Bellows  v 115 

Greenough,  Porter  v 238,  note 

Gregory  v.  Wells  (cited) 237,  239 

Griffin  v.  Huse 285,  note 

Hale,  Harris  v 499,  note 

Hale  V.  Vesper 283 

Hall  V.  Stone 389 

Hamblin,  Geer  v 218 

Harris  v.  Hale 499,  note 

Harris  v.  Willard 63 

Hart,  Chesterfield  v 350 

Hart  V.  Little 52 

Haven  v.  Libbey 109 

Henderson  v.  Erskine 36,  note 

Henderson,  Walton  v 168 

Henry  v.  Arms 39 

Herbert,  Flanders  v 205 

Hobbes,  Lord  v 80 

Hodgdon  v.  Lougee 104 

Hodgdou  V.  Robinson 320 

Hoit,  Brown  v 53 

Holden  v.  Reed 278 

Horn,  Swett  v 429 

Huse,  Griffin  v 285,  note 

Jones  V.  Ames 133 

Jones  V.  Coos  Bank 249 

Kelley  v.  Bean 157 

Kennedy  v.  Ricker 432 

Kenrick,  Proprietors  of  Cornish  v 270 

Keyes,  State  v 135 

Kidder  v.  French 155 

Kingsbury  v.  Cooke 217 

Kingsbury,  Willard  v 223 

Kingstown,  Plastow  v 241 


xii  TABLE   OF   CASES. 

Page 

Ladd,  Carr  v 45 

Ladd,  Smith  v 244 

Langdon,  Brown  v 178 

Leathers,  Footman  V 108,  note,  111,  note 

Leavitt,  Oilman  v 304 

Leavitt,  Phillips  v 130 

Lewis  V.  Clagett 187 

Lewis  V.  Foster 420 

Lewis,  Porter  v 148,  note 

Libbey,  Haven  v 109 

Libbey,  Reynolds  v 197 

Libbey,  Symmes  v 137 

Little,  Ckrke  v 100 

Little,  Hart  v 52 

Lord  V.  Hobbes 80 

Lougee,  Hodgdon  v 104 

Mason,  Bush  v 117 

Mellen,  New  Hampshire  Strafford  Bank  v 385 

Melven  i\  Darling 74 

Moore  v.  Poole 166 

Morey,  Palmer  v.  (cited) 360 

Morey  v.  Proprietors  of  Orford  Bridge 91 

Morrell,  Doe  v 255 

Munsey,  Drew  v 317 

Muzzy  V.  Wilkins 1 

New  Hampshire  Strafford  Bank  v.  Mellen 385 

Norris,  Burbank  v 440 

Orford  Bridge,  Proprietors  of,  Morey  v 91 

Page,  State  V 149 

Palmer  v.  Morey  (cited) 360 

Parker  V.  Willard 212 

Patterson  v.  Games  (cited) 124 

Phillips  V.  Leavitt 130 

Plastow  V.  Kingstown 241 

Poole,  Moore  V 166 

Porter  v.  Oreenough 238,  note 

Porter  v.  Lewis 148,  note 

Porter  v.  Tarlton 372 


TABLE   OF   CASES.  xiii 

Paob 

Proprietors  of  Cornish  v.  Kenrick 270 

Proprietors  of  Orford  Bridge,  Moray  v 91 

Raymond  v.  Stiles 87 

Reed,  Holden  v 278 

Reynolds  v.  Libbey 197 

Rhoads  V.  Ayer 112,  note,  113,  note 

Ricker,  Kennedy  v 432 

Robinson  v.  Clarke 147 

Robinson,  Hodgdou  v 320 

Sheafe,  Brown  v 134,  note 

Smith  V.  Ladd 244 

State  V.  Clarke  (cited) 240 

State  V.  Keyes 135 

State  V.  Page 149 

State  V.  Stevens 251 

State  V.  Vamey 322 

Steele  v.  "Warner 263 

Stevens,  State  v 251 

Steward,  Fisher  v 60 

Stiles,  Raymond  v 87 

Stone,  Hall  v 389 

Sumner,  Temple  v 226 

Swett  V.  Horn 429 

Symmes  v.  Libbey • 137 

Tarleton,  Porter  v 372 

Temple  v.  Sumner 226 

Thompson  v.  Befinet 327 

Thompson  v.  Young  (cited) 360 

Twombly  v.  Baker 122 

Twombly,  Dame  v 262 

Varney,  State  v 322 

Vesper,  Hale  v 283 

Walton  V.  Henderson 1 68 

Warner,  Steele  v 263 

Watkins,  French  v 49 

Webster  v.  Edson 370 

Weld,  Wood  V 367 


xiv  TABLE   OF   CASES. 

Page 

Wells,  Gregory  v.  (cited) 237,  239 

Wild,  Carpenter  v 365 

Wilkins,  Muzzy  v 1 

Willard,  Brattle  v 374 

Willard,  Harris  v 63 

Willard  v.  Kingsbury 223 

Willard,  Parker  v 212 

Wilson  V.  Eastman 287 

Winch  V.  Wright 175 

Wood  V.Weld 367 

Wright,  Winch  v 175 

Young,  Thompson  v.  (cited) 360 


ERRATA. 

Page  86,  line  6.  For  "  7  Cush."  read  "  5  Cueh." 

178,  note  1.  For  "  7  Cush."  read  "  6  Cush." 

279,  line  26.  After  "contractors,"  insert  i. 

279,  line  82.  After  "  (a)  "  erase  ». 


Page  473,  Note  * 
At  the  end  of  paragrapli  I.,  insert  :  "  Under  a  recent  statute  of  New  Hamp- 
sliire,  an  administrator  va&y,  under  certain  circumstances,  be  appointed  upon 
the  estate  of  a  person  who  has  not  been  heard  of  for  one  year,  and  who  is 
beheved  by  the  judge  of  probate  to  be  dead.  Laws  of  1872,  c.  22 ;  re-enacted 
in  Gen.  Laws,  c.  196,  §§  16,  17." 


SUPERIOR   COURT   OF    JUDICATURE. 


HILLSBOROUGH,    MAY    TERM,    1803. 


John  Muzzy  v.  Samuel  Wilkins,  Jonathan  Smith,  and 
Daniel  Campbell. 

Presbytermns  and  Congregationalists  are  different  sects  in  religion,  witliin  the 
meaning  of  the  Constitution.  Hence  a  Presbyterian  cannot  be  taxed  for  tlie 
support  of  a  Congregational  minister. 

Trespass.  First  count,  for  making  a  parish  tax  (First 
Parish  in  Amherst),  Dec.  31,  1795,  and  illegally  assessing  the 
plaintiff  seventy-five  cents ;  making  a  warrant,  directed  to 
N.  Kendall,  by  virtue  of  which  he  arrested  the  plaintiff, 
Jan.  1,  1798,  and  imprisoned  him  four  days,  till  he  was  com- 
pelled to  pay  the  tax  and  one  hundred  dollars  to  obtain  his 
release. 

Second  count,  similar  to  the  first,  except  that  the  tax  is  said 
to  be  to  pay  the  Rev.  J.  Barnard  his  salary,  and  the  sura 
assessed  on  the  plaintiff  was  two  dollars  and  twenty-three 
cents. 

The  action  was  commenced  returnable  to  March  Term, 
1800. 

I.  The  defendants  pleaded  not  guilty  to  the  whole  declara- 
tion, and  issue  was  joined. 

II.  By  leave  of  court  they  pleaded  a  second  plea  to  each 
count. 

1.  To  the  first  count,  as  to  every  thing,  except  the  force  and 
arms  and  whatever  is  against  the  peace,  actio  non,  because  they 

1 


HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


say  that  on  and  before  Dec.  31,  1795,  there  was  a  parish  in 
Amherst,  called  the  First  Parish ;  that  the  defendants  Avere 
duly  chosen  assessors  for  said  parish,  March  16,  1795,  and 
accepted  the  oflBce  ;  that  the  parish  duly  and  legally  voted  to 
raise  a  tax  to  defray  current  charges,  &c.,  amount,  ninety- 
three  dollars  and  thirty-two  cents ;  that  N.  Kendall  was  duly 
chosen  collector,  and  accepted  the  office ;  that  the  plaintiff,  on 
March  16  and  Dec.  31,  1795,  long  before  and  ever  since,  was 
an  inhabitant  of  and  belonged  to  said  parish,  having  ratable 
property  therein,  and  liable  by  law  for  the  payment  of  his 
proportion  of  all  taxes  legally  assessed  on  said  parish ;  that 
the  defendants  duly  assessed  the  inhabitants  of  said  parish, 
and,  among  others,  the  plaintiff  seventy-five  cents,  being  his 
just  proportion  of  the  sura  aforesaid  ;  and  made  a  warrant  to 
N.  Kendall,  authorizing  him  to  collect  the  same,  agreeably  to 
law  ;  that  N.  Kendall  proceeded  according  to  law,  and,  be- 
cause the  plaintiff,  though  duly  notified  of  the  assessment 
aforesaid,  and  required  to  pay,  neglected,  &c.,  arrested  the 
plaintiff,  and  imprisoned  him  till  he  paid,  &c. ;  all  which  doings 
of  the  defendants  and  N.  Kendall  were  lawful,  which  is  the 
residue,  &c. 

2.  The  second  plea  to  the  second  count  was  the  same,  ex- 
cept in  the  description  of  the  tax  and  sum,  and  except  that  it 
was  not  alleged  that  the  plaintiff  belonged  to  the  said  parish, 
but  only  that  he  was  an  inhabitant,  liable,  &c. 

To  the  second  plea  to  the  first  count  the  plaintiff  replied 
preclvdi  non,  because,  March  16,  1795,  long  before  and  ever 
since,  Mr.  Barnard  was,  hath  been,  and  now  is  a  public  teacher 
of  that  religious  persuasion,  sect,  or  denomination  of  Christians 
known  by  the  name  of  Congregationalists,  and  the  majority  of 
the  members  of  the  said  first  parish  in  Amherst,  of  which  he 
is  the  public  teacher,  were,  during  the  time  aforesaid,  and  now 
are,  of  the  same  persuasion,  sect,  or  denomination  ;  and  that 
the  said  Muzzy,  during  all  the  time  aforesaid,  was,  and  now  is, 
of  another  and  different  religious  persuasion,  sect,  or  denomi- 
nation, namely,  of  the  religious  persuasion,  sect,  or  denomina- 
tion called  and  known  by  the  name  of  Presbyterians,  and  this 
he  is  ready  to  verify,  &c. 


MAY   TERM,   1803. 


Muzzy  V.  Wilkins. 


Similar  replication  to  the  second  plea  in  bar  of  the  second 
count. 

To  the  first  replication  the  defendants  rejoined  that  the 
plaintiff  was  not,  during  the  time  aforesaid,  of  the  religious 
persuasion,  sect,  or  denomination  called  and  known  by  the 
name  of  Presbyterians,  and  of  this  they  put  themselves  on  the 
country,  and  issue  was  joined. 

To  the  second  replication  the  defendants  demurred,  and  the 
plaintiff  joined  in  demurrer. 

The  following  is  the  opinion  of  Smith,  C.  J. :  ^  — 
By  these  pleadings,  as  it  respects  the  second  count,  in  which 
the  plaintiff  sets  up  a  claim  to  exemption  from  the  Rev.  Mr. 
Barnard's  salary  for  1795,  it  is  admitted  that  the  plaintiff  was 
and  is  a  Presbyterian  ;  and  the  only  question  referred  to  the 
decision  of  the  court  is  whether  Presbyterians  are,  within  the 
meaning  of  our  Constitution,  of  another  or  different  persuasion, 
sect,  or  denomination,  from  Congregationalists.  If  they  are, 
the  plaintiff  is  entitled  to  recover  upon  this  count.  If  not,  he 
was  rightfully  taxed,  the  replication  is  sufficient,  and  the  de- 
fendants must  have  judgment.  The  question  is  important, 
inasmuch  as  there  is  involved  in  it  the  construction  of  a  great 
and  fundamental  article  of  the  Constitution,  an  article  in  which 
every  individual  is  concerned,  and  which  has  at  all  times, 
when  drawn  into  discussion,  excited  a  great  degree  of  interest 
and  zeal.  It  is  of  importance  that  we  should  decide  aright, 
and  that  the  grounds  of  our  judgment  should  be  clearly  and 
certainly  known,  as  a  rule  to  be  fc^llowed  hereafter  in  all 
cases  of  the  like  nature.  The  best,  if  not  the  only,  way  to 
arrive  at  the  true  sense  of  any  particular  clause  in  the  Con- 

1  A  large  portion  of  the  author's  notes  to  this  opinion  were  evidently 
made  a£ter  the  delivery  of  the  opinion,  and  after  it  had  been  copied  into 
the  manuscript  volume  from  which  it  is  now  printed.  The  blank  leaves 
of  the  manuscript  seem  to  have  been  used  as  a  sort  of  commonplace-book, 
in  which  to  record  references  to,  and*  extracts  from,  later  reading,  not 
always  sustaining  the  text.  The  notes  so  made  are  of  unequal  value;  and, 
if  the  manuscript  had  been  revised  by  the  author  with  a  view  to  publica- 
tion, some  notes  would  probably  have  been  omitted,  and  others  condensed. 
A  few  of  these  notes  have  been  omitted  in  the  present  publication. 


HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


stitution,  is  to  examine  all  the  parts  of  that  instrument  which 
relate  to  the  same  subject,  compare  them  together,  and  then 
put  that  sense  upon  it  which,  on  a  fair  consideration  of  the 
whole,  we  collect  the  framers  intended  it  should  bear. 
This  is  the  more  necessary,  as  it  is  apprehended  that  very 
erroneous  opinions  have  been  entertained  on  the  clause  of  the 
Constitution  which  i-elates  to  religion  and  the  right  of  con- 
science. 

L  By  the  fourth,  fifth,  and  sixth  articles  of  the  Bill  of 
Rights  it  is  declared  "  that  the  rights  of  conscience  are 
founded  in  nature  and  are  unalienable  ;  that  every  individual 
has  a  right  to  worship  God  according  to  the  dictates  of  his 
own  conscience  and  reason  ;  and  that  no  one  shall  be  hurt, 
molested,  or  restrained,  in  his  person  or  his  estate  for  thus 
worshipping  his  Maker,  or  for  his  religious  profession,  senti- 
ments, or  persuasion,  provided  he  doth  not  disturb  the  public 
peace  or  disturb  others  in  their  religious  worship  ;  that  every 
denomination  of  Christians  demeaning  themselves  quietly  and 
as  good  subjects  of  the  State  shall  be  equally  under  the  pro- 
tection of  the  law,  and  no  subordination  of  any  one  sect 
or  denomination  to  another  shall  ever  be  established  by 
law."  (a)  - ,    ■ 

That  society,  or,  which  is  the  same  thing,  that  the  civil 
magistrate,  should  ever  undertake  to  prescribe  to  men  what 
they  shall  believe  and  what  they  shall  not  believe,  is  a  thing 
so  absurd  that  we  should  hardly  believe  it  upon  less  evidence 
than  that  of  experience.  Opinions  are  not  the  proper  objects 
of  human  authority.  The  mind  of  man  was  not  intended  by 
its  wise  Creator  to  be  subjected  to  the  control  of  finite  and 
limited  beings  like  itself.  Freedom  of  thought  is  the  preroga- 
tive of  human  kind  (Eden,  91),  (6)  a  quality  inherent  in  the 

(n)  4  Relsharn,  Geo.  III.  204,  205.  No  man  ought  to  be  molested  on 
account  of  liis  opinions,  not  even  his  religious  opinions,  provided  his  avowal 
of  them  does  not  disturb  the  public  order. 

The  law  ought  only  to  prohibit  actions  hurtful  to  society.  Articles  V. 
and  X.,  French  Declaration  of  Rights,  1789. 

(h)  Conscience  is  the  royalty  and  prerogative  of  every  private  man. 
lie  is  absolute  in  his  own  bi'east,  and  accountable  to  no  earthly  power  for 


MAY   TERM,   1803. 


Muzzy  V.  Wilkins. 


very  nature  of  a  thinking  being,  a  privilege  which  ought  never 
to  be  denied.  And  yet  we  find  an  English  Parliament  making 
it  treason  to  be  willingly  withdrawn  or  converted  to  the 
Popish  religion.  Eden,  144.  (a)  Equally  absurd  was  the 
Act  of  the  same  Prince  which  made  it  treason  to  believe  that 
he  was  married  to  Anne  of  Cleves.   Eden,  93.  (i) 

The  infallible  Church  of  Rome  condemned  the  Copernican 
System  as  a  heresy,  and  the  famous  Galileo  was  imprisoned 
for  believing  and  teaching  it.  He  was  obliged  to  recant  and 
curse  his  former  opinions,  and  swear  that  he  would  believe  so 
no  more.  This  was  compelling  him  to  promise  what  he  could 
not  perform,  (t?)  Mere  difference  of  opinion  has  been  deemed 
an  offence.  The  weaker  body,  though  perhaps  the  stronger 
mind,  was  always  the  offender.  It  is  still  more  unjust  and 
absurd   for   government   to    extend  its   jurisdiction  over  the 

that  which  passes  only  betwixt  God  and  him.  Those  who  are  driven  into 
the  fold  are,  generally  speaking,  hypocrites,  rather  than  converts.  1  Dry- 
den,  231,  preface  to  Hind  and  Panther. 

Of  all  the  tyrannies  on  human  kind, 

The  worst  is  tiiat  which  persecutes  the  mind. 

1  Dryden,  246. 

40  Monthly  Review,  650.  The  most  deplorable  degree  of  slavery  is  the 
subjection  of  opinion,  &c. 

(a)  Protestants  have  conscientiously  become  Catholics.  This  was  the 
case  with  George  Calvert,  first  Lord  Baltimore.  Upon  his  conversion,  he  re- 
signed his  office  of  Secretary  of  State.    2  Belknap,  American  Biography,  364. 

(6)  See  67  Monthly  Review,  15. 

Strange  legislation,  to  make  the  exercise  of  the  understanding  penal. 
Impolitic  and  unjust.     21  Edinburgh  Review,  182. 

(c)  To  destroy  people  for  points  of  mere  speculation,  and  which  have 
no  ill  effects  on  practice  and  civil  government,  seems  very  remote  from  the 
spirit  of  Christianity.  Supposing  truth  on  the  persecuting  side,  yet  to 
burn  a  man,  because  he  will  not  belie  his  conscience  and  turn  hypocrite, 
is  strangely  unaccountable.  Men  cannot  believe  what  they  please.  Their 
understandings  are  not  all  of  a  size.  Tilings  do  not  stand  in  the  same 
light  and  strike  with  the  same  force  on  everybody.  Besides,  if  the  perse- 
cutors believe  the  persecuted  will  be  so  ill  received  in  the  other  world,  why 
do  not  they  use  them  better  in  this?  Why  do  they  hurry  them  to  eternal 
destruction  before  their  time?  Such  wisdom  does  not  proceed  from  jibove 
It  is  earthly,  sensual,  and  devilish.  Collier,  2  Rep.  48,  n.  6.  See  1  Lord 
Erskine's  Speeches,  307. 


HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


opinions  of  men  in  matters  of  religion,  (a)  Religion  is  that 
sense  of  Deity,  that  reverence  for  the  Creator,  which  is  im- 
planted in  the  minds  of  rational  beings.  It  is  seated  in  the 
lieart,  and  is  conversant  witli  the  inward  principles  and  tem- 
per of  the  mind.  It  nuist  he  the  result  of  personal  conviction. 
It  is  neither  to  be  produced  by  fines  and  penalties,  nor  can  it 
be  extirpated  by  them.  It  is  a  concern  between  every  man 
and  his  Maker.  The  laws  which  regulate  faith  come  immedi- 
ately from  the  author  of  the  human  soul.  They  are  not  like 
human  laws  to-day,  commanding  us  to  believe  what  to-morrow 
we  are  roasted  alive  for  believing.  They  are  always  the 
same,  and  will  remain  the  same  when  the  laws  and  constitu- 
tions of  men  shall  have  only  an  historical  existence  or  be 
utterly  forgotten. 

No  human  government  has  a  right  to  set  up  a  standard  of 
belief,  because  it  is  itself  fallible.  (6)  It  has  not  pleased  God 
to  enlighten  by  his  grace  any  government  witii  the  gift  of  un- 
derstanding the  Scriptures.  Uniformity  of  opinion  in  matters 
of  faith  is  not  practicable,  and,  if  it  were,  is  not  desirable.  (^) 
All  the  means  that  have  been  used  for  the  purpose  at  all 
times  and  in  all  places  have  multiplied,  instead  of  diminishing, 

(a)  They  alone  who  abhor  toleration  deserve  little.  They  are  enemies 
to  the  freedom  of  religion,  over  which  God  alone  can  have  any  right  of 
empire.     Horace  Walpole,  Works,  II. ;  5  Senator,  785,  &c. 

Rellqionem  imperare  non  possumus,  quia  nemo  cogitur  ut  credal  invitus. 
Theodcric.     68  Monthly  Review,  71. 

(b)  An  Act  of  Parliament  passed  (1  Rapin,  827),  declaring  that  what- 
ever the  King  should  enjoin  in  matters  of  religion  should  be  believed  and 
obeyed  by  all  his  subjects.      1  Kapiii,  82.9. 

(c)  It  is  the  interest  of  a  despot  to  have  but  one  religion  in  his  domin- 
ions, because  it  is  his  interest  that  there  should  be  none.  07  Monthly 
Review,  14. 

It  is  not  in  the  power  of  men  to  believe  what  they  please;  and,  there- 
fore, I  think  they  should  not  be  forced  in  matters  of  religion,  contrary  to 
their  persuasions  and  their  consciences.  I  wish  all  good  men  were  of  one 
mind.  However,  in  the  mean  lime,  I  would  have  them  live  peaceably  and 
love  one  another.  Mass.  Hist.  Coll.  I.  251  ;  14  Edinburgh  Review,  372, 
397;  Queen  Mary,  1689. 

God  above  alone  can  look  into  the  heart;  and  man,  could  he  look  into 
it,  has  no  jurisdiction  over  it,  until  society  is  disturbed  by  its  actions. 
1  Lord  Erskine's  Speeches,  422. 


MAY   TERM,  1803. 


Muzzy  V.  Wilkins. 


sects  and  opinions.  In  the  English  statute  book  we  find  an 
act  for  abolishing  diversity  of  opinion  in  certain  articles  of  the 
Christian  religion,  (a)  The  preamble  recites  that  great 
advantages  result  from  unity  of  sentiment,  and  that  many  evils 
flow  from  diversity  of  opinion,  in  religious  matters,  that  the 
King  had  summoned  Parliament  and  the  Convocation  for  the 
express  purpose  of  putting  an  end  to  this  diversity ;  that 
among  other  questions  he  had  submitted  this  to  these  two 
venerable  assemblies,  "  Whether,  after  consecration  in  the 
sacrament  of  the  Eucharist,  the  substance  of  the  bread  and 
wine  remains,  or  no  ?  "  that  his  Majesty  had  commanded  this 
question  to  be  discussed,  and,  what  is  more,  to  be  understood  ; 
and,  to  accomplish  so  desirable  an  object,  had  himself  mingled 
in  the  debate,  and  given  a  specimen  of  his  princely  knowledge. 
The  result  of  this  assemblage  of  talents,  wisdom,  and  piety  is 
stated  in  the  enacting  clause  :  "  Therefore  it  was  resolved, 
agreed,  and  enacted,  by  authority  of  Parliament,  that,  in  the 
sacrament,  by  the  strength  and  efficacy  of  the  word  of  Christ 
spoken  by  the  priest,  the  natural  body  and  blood  of  Christ, 
conceived  of  the  Virgin  Mary  under  the  form  of  bread  and 
wine,  is  really  present,  and  of  course  the  bread  and  wine  no 
longer  remain." 

In  truth,  this  question  was  no  better  understood  after  frhis 
act  passed  than  before.  Things  remained  exactly  as  before, 
unless  it  was  that  the  opinions  of  men  became  still  more 
diverse,  from  this  absurd  attempt  to  unite  them.  (6)     Persecu- 

(a)  31  Henry  VIII.  ch.  14;  1  Rapin,  821,  822;  Cooper's  Justinian's 
Institutes,  633,  663 ;  1  Haz.  Eloq.  Brit.  Sen.  406 ;  67  Monthly  Review,  15. 

(6)  An  absurd  attempt  was  made  in  Salem,  1631,  to  introduce  uniform- 
ity in  dress,  wearing  of  veils.     Mass.  Hist    Soc,  1799,  VI.  245,  258. 

46  Monthly  Review,  77.  It  is  difficult  to  determine  whether  the  princi- 
ple of  religious  persecution  be  most  wicked  or  most  weak.  Calvin,  imag- 
ining Servetus  to  be  wandering  in  the  darkness  of  error,  seems  to  have 
concluded  that  no  light  could  so  surely  guide  him  to  the  truth  as  that  of  a 
bonfire,  in  which  the  convert  himself  was  to  be  the  principal  fagot.  How 
abominable,  and,  at  the  same  time,  how  absurd  ! 

He  that's  convinced  against  his  will, 

Is  of  the  same  opinion  still.  Hudibras. 


HILLSBOROUGH. 


Muzzy  i;.  Wilkins. 


tion  on  account  of  religious  opinions  is  no  less  opposed  to 
sound  policy,  to  the  sentiments  of  nature  and  humanity,  than 
it  is  to  the  mild  precepts  of  the  Gospel  of  Peace. 

A  celebrated  Englishman  of  the  present  day  (a)  observes 
that  it  is  his  ardent  wish  to  extirpate  heresy  by  fire,  —  not,  in- 
deed, in  the  old  mode  of  burning  heretics,  but  by  burning  all  the 
statutes  which  declared  the  offence  of  heresy  and  thus  formed 
the  code  of  persecution.  This  is  precisely  the  course  taken 
by  our  Constitution.  It  cuts  up  persecution  by  the  roots.  It 
secures  to  eveiy  man  the  free  enjoyment  of  his  opinions  on 
religious  subjects.  It  prescribes  no  articles  of  faitli.  It  for- 
bids the  legislature  to  prescribe  any.  It  leaves  every  man  free 
to  examine  and  judge  for  himself.  Let  it  not  be  imagined 
that  tliis  provision  was  unnecessary  and  useless,  (i)  Mankind 
have  always  been  disposed  to  j^ersecute  their  fellow  men.  (c) 
But,  as  long  as  this  charter  of  our  liberties  remains  inviolate, 
there  can  be  no  persecution  in  this  State  on  account  of  re- 
ligion. Every  man  may  worship  God  according  to  the  dictates 
of  his  own  conscience  and  reason  ;  and  even  those  who  deny 
their  Maker  this  "  most  reasonable  service,"  who  refuse  to 
worship  him,  or  who  entertain  erroneous  opinions  of  him,  his 
attributes,  and  his  religion,  are  referred  for  trial  and  punish- 
ment to  him  whose  judgment  cannot  err,  and  who  will  surely 
render  to  every  man  the  just  reward  of  liis  own  doings.  (tZ) 

(a)  Mr.  Fox.     4  Belsham,  Geo.  III.  364. 

(b)  They  who  tell  us  that  the  days  of  persecution  and  superstition  are 
past,  and  that  we  shall  never  see  any  more  of  them,  pay  too  high  a  com- 
pliment to  human  nature.  The  same  poison  still  subsists,  though  it  does 
not  appear  so  openly.  Some  symptoms  of  this  plague  break  out  from 
time  to  time,  enough  to  infect  the  earth.     Voltaire,  1742. 

See  5  Burke's  Works,  202,  205,  207;  1  Brit.  Cicero,  132;  Burke's 
Speech  to  the  Electors  of  Bristol,  1780. 

(c)  The  simple  and  effectual  expedient  of  permitting  the  different  sects 
in  religion  to  profess  and  enjoy  their  opinions  with  equal  freedom  was,  in 
the  time  of  Henry  IV.  of  France,  15!)8  (at  commencement  of  seven- 
teenth century),  and  long  after,  untried  in  practice,  and  almost  unknown 
in  speculation.  The  toleration  of  error  and  the  permission  of  crimes  were 
treated  alike.     Mackintosh,  Rev.  1688,  22t. 

((I)  The  provision  in  this  article,  according  to  what  has  been  just  stated. 


MAY   TERM,  1803. 


Muzzy  V.  Wilkins. 


II.  But  our  Constitution  goes  furtlier.  It  wholly  detaches 
religion,  as  such,  from  the  civil  State.  By  the  mixture  of 
civil  and  spiritual  powers,  both  become  polluted.  3  Warb. 
Serm.  300,  301.  The  civil  uses  religion  for  an  engine  of  State 
to  support  tyranny,  and  the  spiritual  becomes  invested  with 
the  sword  of  the  civil  magistrate  to  persecute.  Under  our 
Constitution  tliere  is  no  such  union,  no  such  mixture.  No 
one  sect  is  invested  with  any  political  power,  much  less  with 
a  monopoly  of  civil  privileges  and  civil  offices.  The  particular 
sect,  or  denomination,  to  which  a  citizen  belongs  neither  pro- 
motes nor  hinders  his  political  advancement.  It  is  his  charac- 
ter, not  his  opinions;  his  works,  not  his  faith,  —  that  is  to  be 
regarded.  All  denominations  are  equally  under  the  protection 
of  the  law,  are  equally  the  objects  of  its  favor  and  regard. 
No  one  denomination  is  subordinate,  that  is  inferior  in  degree, 
to  another,  for  all  are  equal.  Nothing  could  be  better  calcu- 
lated to  promote  the  peace  and  tranquillity  of  society  than  this 
excellent  provision.  It  is  admirably  calculated  to  prevent  re- 
ligious hate ;  to  assuage  the  bitterness  of  religious  contests, 
which  (when  religion  is  connected  with  the  State)  are  the 

is  considered  in  England,  by  all  parties  and  sects,  as  securing  the  rights  of 
conscience  in  the  most  ample  degree.     4  Belsham,  Geo.  HI.  126. 

Mere  opinions  onght  not  to  be  punished  by  the  civil  magistrate.  Loud 
Mansfield,  Blackst.  Appendix,  145-152;  Cowper,  383-393;  4  Belsliam, 
Geo.  III.  215,  280,  364;  Articles  V.  and  X.,  French  Declaration  of  Rights, 
1789;  2  Anach.  364,  365,  &c. 

(Conlra.  2  Boswell's  Life  of  Johnson,  105-113;  3  Boswoll,  363; 
64  Monthly  Review,  499-503;  New  England  Platform,  Wise,  228.) 

Blackst.  Appendix,  Furneaux  Lett.  27,  n.;  Dr.  Tucker's  Remarks  on 
Parsons,  8,  &c.;  Private  Opinions,  33  Monthly  Review,  554. 

Voltaire.  The  only  case  in  wliich  intolerance  is  justifiable  by  human 
laws  is  when  the  errors  of  a  people  become  criminal.  Government  hath 
then  a  right  to  punish  them.  They  become  criminal  only  when  they  dis- 
turb the  peace  of  society  and  inspire  fanaticism.  No  fanatics  of  any  re- 
ligion can  lay  claim  to  toleration.     30  Monthly  Review,  531. 

Marmontel,  Speech,  II.  196.  In  religion,  thought  is  absolutely  free,  for 
it  appertains  to  man  in  his  relation  to  God. 

Action  in  worship  is  but  conditionally  free,  for  it  appertains  to  man  iu 
society.     It  may  be  restrained  when  it  disturbs  the  public  tranquillity. 

Religion  is  an  innocent  thing,  &c.      17  Edinburgh  Review,  394. 


10  HILLSBOROUGH. 


Muzzv  I'.  Wilkins. 


bitterest  of  all  contests.  It  holds  forth  no  motive  to  incite 
each  man  to  divine  the  opinions  of  his  neic^hbor,  and  to  deduce 
mischievous  consequences  from  them.  It  furnishes  no  motives 
to  hypocris}',  nothing  to  gratify  the  passions  of  avarice  and 
ambition.  On  the  contrary,  the  collision  of  opinions  in  open 
and  liberal  discussion  among  men  living  under  the  same  gov- 
ernment, which  it  permits  and  cherishes,  cannot  fail  to  produce 
the  most  happy  effects  in  the  promotion  of  knowledge,  candor, 
and  charity.  In  a  word,  our  Constitution  regards  men  as  they 
are  regarded  by  the  great  Governor  of  the  world,  who  bestows 
the  blessings  of  his  providence  on  all  the  children  of  men, 
however  diversified  by  modes  of  faith,  and  however  divided 
into  sects  and  denominations,  (a) 

III.  Under  the  two  preceding  heads  we  have  seen  that  the 
Constitution  secures  the  citizens  of  this  State  against  persecu- 
tion on  account  of  their  religious  faith  and  worship.  It  de- 
clares that  all  men  are  equal  in  the  sight  of  the  law,  are 
equally  eligible  to  honors,  places,  and  employments,  without 
any  other  distinction  than  that  created  by  their  talents  and 
virtues,  (b)  Religious  opinions  form  no  ground  of  distinction. 
But  we  are  not  from  hence  to  infer  that  the  civil  magistrate 
may  not  lawfully  punish  certain  offences  against  the  unaltera- 
ble and  essential  principles  of  natural  and  revealed  religion, 
for  these  principles  are  said  to  make  a  part  of  the  common 
law.  Of  this  description  are  the  offences  of  blasphemy,  (c) 
reviling  religion,  profanation  of  the  Sabbath,  &c.     Nor  are  we 

(a)  There  is  a  small  deviation  from  this  liberal  doctrine  in  the  Consti- 
tution, where  it  is  provided  that  Governor,  Councillors,  Senators,  and 
Representatives  shall  be  of  the  Protestant  religion.*  There  is  no  religious 
qualification  as  it  respects  electors. 

See  Mr.  Pitt's  speech  in  favor  of  excluding  Dissenters  from  offices.* 
4  Belsham,  Geo.  III.  124,  &c. 

(i)  Article  VI.,  French  Declaration  of  Rights,  1789;  4  Belsham,  Geo. 
III.  2G5. 

(c)  Atheism.  Lord  Mansfikld  ^Blackst.  Appendix),  Speech,  145, 
152;  Bishop  of  St.  David's  (Dr.  Ilorsley),  4  Belsham,  Geo.  III.  220. 

*  Judge  Smith,  in  the  Constitutional  Convention  of  1791,  voted  in  favor  of  ex- 
punginj^  the  Protectant  test.  JournMl  of  Convention;  10  Provincial  and  State  Papers, 
46.     The  test  was  finally  abolished  by  the  constitutional  amendments  adopted  in  1877. 


MAY   TERM,  1803.  11 


Muzzy  V.  Wilkins. 


to  infer  that  religion  is  a  thing  of  no  consequence  to  society. 
The  reverse  is  the  case,  (a)  Religion,  in  the  strict  sense  of 
the  word,  is  a  personal  concern.  It  is  a  matter  between  God 
and  every  one  of  his  rational  creatures.  Yet  religious  princi- 
ples have  the  most  unbounded  and  the  most  salutary  influence 
on  the  affairs  of  men  united  in  society.  It  is  declared  in  our 
Constitution  that  morality  and  piety  rightly  grounded  on 
evangelical  principles,  that  is,  on  the  principles  of  the  Gospel, 
will  give  the  best  and  greatest  security  to  government,  and 
will  lay  in  the  hearts  of  men  the  strongest  obligations  to  due 
subjection,  or,  in  other  words,  will  make  the  best  citizens  and 
subjects  ;  that  the  knowledge  of  these  is  most  likely  to  be 
propagated  through  society  by  the  institution  of  tlie  public 
worship  of  the  Deity,  and  by  public  instruction  in  morality 
and  religion.  It  is  then  declared  that,  to  promote  these  im- 
portant purposes,  the  legislature  may  empower  the  several 
towns,  corporate  bodies,  and  religious  societies  in  the  State,  to 
make  adequate  provision  for  the  support  and  maintenance  of 
public  teachers  of  piety,  religion,  and  morality ;  to  be  elected 
by  the  majority  of  the  corporation.  The  legislature  have  done 
as  they  were  required,  and  have  given  to  towns  and  parishes 
the  authority  they  were  thus  enabled  to  give.^ 

(a)  47  Monthly  Review,  Sept.  1772,  p.  236;  Dr.  Kippis,  47  Monthly 
Review,  105;  67  Monthly  Review,  15,  6,  7;  3  Senator,  585. 

1  The  Statute  of  Feb.  8,  1791,  §  10,  enacts  that  the  inhabitants  of  each 
town,  at  any  legal  meeting,  "may,  agreeably  to  the  Constitution,  grant 
and  vote  such  sum  or  sums  of  money  as  they  shall  judge  necessary  for  the 
settlement,  maintenance,  and  support  of  the  ministry,  schools,  meeting- 
houses, school-houses,  ...  to  be  assessed  on  the  polls  and  estates  in  the 
same  town,  as  the  law  directs  " 

The  Provincial  Statute  of  May  14,  1714,  empowered  towns  to  choose 
ministers,  and  raise  money  by  taxation  for  their  support:  ''Provided 
always,  that  this  act  does  not  at  all  interfere  with  Her  Majesty's  grace  and 
favor  in  allowing  her  subjects  liberty  of  conscience;  nor  shall  any  person, 
under  pretence  of  being  of  a  different  persuasion,  be  excused  from  paying 
towards  the  support  of  the  settled  minister  or  ministers  of  such  town 
aforesaid;  but  only  such  as  are  conscientiously  so,  and  constantly  attend 
the  publick  worship  of  God  on  the  Lord's  day,  according  to  their  own  per- 
suasion, and  they  only  shall  be  excused  from  paying  towards  the  support 
of  the  ministry  of  the  town." 


12  HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


The  principles  upon  which  towns  and  parishes,  in  tlieir  cor- 
porate capacity,  are  enabled  to  support  and  maintain  public 
instruction  in  religion  and  morality,  which  have  just  been  de- 
tailed, are  not  the  more  true  and  solid  for  being  recognized  in 
our  Constitution  ;  but  their  being  found  there  justly  authorizes 
those  whose  duty  it  is  to  interpret  that  instrument  to  weigh 
and  consider  them  in  judging  of  the  extent,  the  limitation, 
and  the  restrictions  of  the  power  conferred  ;  and,  taking  those 
principles  into  consideration,  we  are  bound  to  suppose  that  a 
power  so  beneficial  and  salutaiy  in  its  consequences,  so  neces- 
sary to  the  well-being,  if  not  to  the  very  existence,  of  a  free 
government,  was  not  intended  to  be  rendered  wholly  nugatory 
by  any  thing  contained  in  other  parts  of  the  same  instrument. 
We  are  bound  to  give  that  construction  to  the  various  clauses 
which  will  give  effect  and  meaning  to  every  part.  We  are  to 
collect  the  meaning  from  the  whole  instrument,  not  from  dis- 
jointed parts.  Under  these  impressions,  and  with  these  rules 
of  construction  for  our  guide,  let  us  examine  that  clause  of 
the  sixth  article  of  the  Bill  of  Rights  which  the  plaintiff 
relies  upon  in  support  of  his  claim  to  exemption.  It  is  this  : 
"  No  person  of  any  particular  religious  sect  or  denomination 
shall  ever  be  compelled  to  pay  towards  the  support  of  the 
teacher  or  teachers  of  another  persuasion,  sect,  or  denomina- 
tion." 

And  here  it  may  be  useful  to  observe  that,  if  this  clause  had 
been  omitted  altogether,  there  would  have  been  neither  any 
violation  of  the  rights  of  conscience,  nor  any  proper  religious 
establishment  in  the  State,  (a) 

A  religious  establishment  (6)  is  where  the  State  prescribes 

(a)  And  yet  a  law  which  should  tax  the  State,  ail  sects  and  denomina- 
tions, for  the  support  of  religious  worship  according  to  the  articles  and 
tenets  of  one  sect  alone,  would  be  considered  as  altogether  oppressive  and 
intolerable ;  in  the  same  manner  as  a  tax  on  the  whole  people  to  edu- 
cate the  children  of  Congregationalists  alone.  See  21  Edinburgh  Review, 
211. 

(b)  See,  on  this  subject,  17  Edinburgh  Review,  6. 
Toleration.     See  17  Edinburgh  Review,  394,  and  above  reference. 
5  Senator,  785. 

Establishment.     5  Quarterly  Review,  352. 


MAY   TERM,   1803.  15 

Muzzy  ('.  Wilkins. 

a  formulary  of  faith  and  worsliip  for  the  rule  and  government 
of  all  the  subjects.  5  Senator,  742.  Here  the  State  do  neither. 
It  is  left  to  each  town  and  parish,  not  to  prescribe  rules  of 
faith  or  doctrine  for  the  members  of  the  corporation,  but  barely 
to  elect  a  teacher  of  religion  and  morality  for  the  society,  who 
is  to  be  maintained  at  the  expense  of  the  whole.  The  privi- 
lege is  extended  to  all  denominations.  There  is  no  one  in  this 
respect  superior  or  inferior  to  another.  The  minority  of  each 
corporation  can  neither  be  molested  on  account  of  their  re- 
ligious opinions,  nor  subjected  to  any  civil  disabilities. 

The  Constitution,  Viewing  religion  in  some  form  or  other  as 
useful  if  not  indispensably  necessary  to  make  good  subjects ; 
not  being  able  to  decide  between  contending  sects  as  to  which 
is  most  agreeable  to  the  Word  of  God,  the  infallible  standard, 
but  viewing  them  all  as  equally  good  for  the  purposes  of  civil 
society,  because  they  all  inculcate  the  principles  of  benevolence, 
philanthropy,  and  the  moral  virtues  (Blackst.  Appendix,  Fur- 
neaux  Lett.  94)  ;  (a)  considering,  too,  that  public  instruction 
in  the  general  principles  of  religion  and  morality  can  only  be 
maintained  by  enabling  corporate  bodies  to  support  and  main- 
tain it,  —  under  these  impressions  and  with  these  views,  confers 
the  powers  in  question. 

Independent  of  the  exempting  clause,  it  is  true  an  indi- 
vidual member  of  the  corporation  would  sometimes  be  com- 
pelled to  pay  towards  the  support  of  a  teacher  of  a  different 
denomination  from  his  own,  but  still  the  conscience  would  be 
left  free.^  He  need  not  believe  as  the  teacher  or  the  majority 
believe.  He  need  not  worship  as  they  worship.  He  may  be- 
lieve and  worship  in  his  own  way,  or  not  believe  and  not 
worship,  just  as  he  pleases.  His  conscience  is  free,  his  civil 
rights  unimpaired.  It  is  his  misfortune  that,  in  electing  a 
teacher  of  religion   and  morality,   he   happens  to   be  in  the 

(a)  3  Senator,  585.  The  experience  of  past  centuries  and  the  contem- 
plation of  present  times  prove  that  religionists  of  all  descriptions  may  be 
equally  good  subjects.     40  Monthly  Review,  N.8.  150. 

^  Compare  P.\rsons,  C  J.,  in  Barnes  v.  First  Parish  in  Falmouth,  1810, 
6  Mass.  401,  408,  409. 


14  HILLSBOROUGH. 

Muzzy  V.  Wilkins. 

minority.^  His  situation,  in  tliis  respect,  is  precisely  the  same 
as  it  is  in  other  civil  concerns  of  the  State.  The  minority  are 
compelled  to  pay  for  instruction  in  learnings,  though  they  may 
be  of  opinion  that  the  schoolmaster  chosen  by  the  majority 
neither  promotes  learning  nor  good  manners,  but  the  contrary. 
So  the  minority  are  compelled  to  pay  towards  the  support  of  a 
governor,  judges,  &c.,  because  the  majority  think  these  men 
advance  the  happiness  and  promote  the  good  of  society,  though 
the  minority  may  think  they  corrupt  and  injure  the  community. 
Public  teachers  of  religion  and  morality  chosen  by  a  corporate 
body,  are  to  every  purpose  civil  officers  of  the  State,  as  much 
so  as  schoolmastei's  and  magistrates.  The  coiporation  choose 
them  and  maintain  them  because  they  believe  their  instructions 
will  promote  the  good  of  society.  Public  instruction  in 
religion  and  morality,  within  the  meaning  of  our  Constitution 
and  laws,  is  to  every  purpose  a  civil,  not  a  spiritual,  institution. 
The  relation  that  subsists  between  a  minister  and  the  town  is 
civil ;  that  which  subsists  between  a  minister  and  the  church 
is  spiritual.  Hence,  the  former  is  regarded  in  our  laws,  and 
the  latter  is  not.  Society  has  a  right  to  judge  what  will  pro- 
mote the  good  of  society,  and  to  provide  for  it  at  the  expense 
of  the  whole,  (a)  The  minority  must  submit  to  tlie  judgment 
of  the  majority.  No  civil  regulation  can  be  made  or  adopted 
which  does  not  militate  with  the  opinions  and  the  wishes  of 
individuals.  Some  there  are  who  profess  to  believe  that 
learning  is  no  way  useful  to  the  State.  They  are  permitted 
to  enjoy  their  opinions  ;  but  they  are  not  on  that  account  ex- 
cused from  paying.  There  are  persons  who  profess  to  believe 
that  war  of  every  kind  is  unlawful ;  "they  are  conscientiously 
scrupulous  about  the  lawfulness  of  bearing  arms."     Thirteenth 

(a)  The  celebrated  Mr.  Locke,  in  framing  a  Constitution  for  the  Caro- 
linas,  allowed  the  Church  of  England  a  maintenance  by  Parliament  (of  the 
Colony).     1  Holmes,  American  Annals,  408,  n. 

1  See  Richardson,  C.  J.,  in  Baptist  Society  v.  Wilton,  1822,  2  N.  H. 
508,  512. 

The  Congregationalists,  although  at  that  day  often  in  the  majority, 
were  not  so  in  every  town.  Sometimes  "  the  tables  were  turned."  See 
instances  cited  by  Doe,  J.,  in  Hale  v.  Everett,  1808,  53  N.  H.  9,  148,  149. 


MAY   TERM,  1803.  16 

Muzzy  V.  Wilkins. 

article  N.  H.  Constitution  ;  1  Gibb.  492,  493.  And  this  is  the 
scruple  of  a  respectable  religious  sect.  They  are  indulged  in 
their  scruples,  but  they  must  pay  an  equivalent,  they  must  pay 
those  who  do  fight,  (a)  An  individual  may  in  his  conscience 
believe  that  his  nation  wages  an  unjust  war,  but  as  long  as  he 
continues  a  member  of  the  State,  he  must  contribute  his  quota 
towards  carrying  it  on. 

In  short,  on  this  subject  of  conscience,  there  is  no  mistake 
more  common  than  for  men  to  mistake  their  wills  and  their 
purses  for  their  consciences.  (6)  Whatever  other  objections, 
therefore,  may  lie  against  the  plan  of  authorizing  towns  to 
elect  and  support  public  teachers  of  religion  and  morality  at 
the  expense  of  every  member,  it  is  clear  that  it  would  be  no 
infringement  of  the  rights   of   conscience,  (c)    The   question 

(a)  3  Boswell's  Life  of  Johnson,  359.  Dr.  Johnson  says:  "  My  friend, 
Tom  Cuming,  the  Quaker,  in  1745,  said  he  would  not  fight,  but  he  would 
drive  an  ammunition  wagon.  And  we  know  that  the  Quakers  have  sent 
flann>-l  waistcoats  to  our  soldiers,  to  enable  them  to  fight  better." 

1  Minot,  235.  Pennsylvania,  under  the  influence  of  the  pacific  princi- 
ples of  the  Quakers,  in  1755,  declined  furnishing  troops  for  the  war,  but 
voted  to  raise  £10,000,  to  be  expended  in  provisions  for  the  use  of  the 
forces  raised  by  the  other  colonies.  "  They  were  wiUing  to  furnish  stomach 
ammunition,  —  the  materiel  of  all  battles  and  bloodshed  they  cause  others 
to  fight."     Nat.  Gaz.,  Oct.  15,  18'25. 

35  Quarterly  Review,  226,  n.     Quaker  casuistry,  a  notable  instance. 

(b)  The  good  Mr.  Vane  could  not  in  conscience  dine  with  Governor 
Wiiithrop  in  company  with  Lord  Ley.     Winthrop's  Journal,  133. 

It  is  the  opinion  of  some  that  it  would  very  much  enlarge  and  establish 
liberty  of  conscience,  that  great  bulwark  of  our  nation,  if  the  Christian 
religion  should  be  abolished.  3  Swift,  lU,  Argument  against  abolishing 
Christianity.     See  id.  p.  124. 

(f)  2  Belknap,  American  Biography,  248,  Life  of  Governor  Bradford 
Certain  persons  excused  themselves  from  working  for  the  public  on  Chri.st- 
mas  Day,  on  the  score  of  conscience.  In  the  course  of  the  day,  the  Gov- 
ernor found  them  at  play.  He  commanded  the  instruments  of  their  game 
to  be  taken  from  them.  At  the  same  time,  he  informed  them  that  it  was 
against  his  conscience  to  suffer  them  to  play  while  others  were  working 
for  the  public. 

There  is  nothing  which  has  not,  at  some  time  or  other,  been  used  as  a 
pretext  of  the  conscientious  kind. 

The  rioters  in  London,  in  1780,  pretended  to  be  actuated  by  religious 
motives ;  the  outrages  they  committed  wei-e  all  iu  defence  of  the  Protestant 


16  HILLSBOROUGH. 


Muzzy  r.  Wilkins. 


before  the  Court,  therefore,  does  not  involve  in  it  a  matter  of 
conscience.  It  is  a  mere  question  of  the  extent  of  a  civil 
obligation  and  a  civil  duty  ;  that  is,  how  far  a  corporate  body- 
can  compel  its  members  to  support  the  public  teacher  chosen 
by  the  corporation  pursuant  to  the  Constitution. 

IV.  It  is  admitted  that  the  plaintiff  is  a  Presbyterian,  and 
that  a  majority  of  the  persons  composing  the  First  Parish  in 
Amherst,  and  their  teacher,  are  Congregationalists.  Are  these 
different  sects,  or  are  they  one  and  the  same  ?  What  is  the 
criterion  by  which  we  may  be  enabled  to  decide  the  question  ? 
Is  it  a  difference  in  faith,  in  doctrinal  points  ;  or  is  it  a  differ- 
ence in  the  form  of  church  government,  discipline,  and  worship, 
which  constitutes  different  sects  and  distinguishes  one  set  of 
Christians  from  another  ? 

Most,  if  not  all,  the  religious  sects  have  their  confessions 
of  faith  and  their  platform  or  directory  of  church  government, 
discipline,  and  worship.  We  find  that  many  sects  agree  in  the 
main  as  to  matters  of  faith,  but  differ  in  their  platforms  of 
government  and  discipline. 

The  Episcopalian,  Presbyterian  and  Congregational  Churches 
agree  in  articles  of  faith,  and  differ  in  government,  discipline, 
and  worship.  Warb.  Sermons,  207.  (a)  Presbyterians,  Inde- 
pendents, Baptists,  in  England,  all  subscribe  doctrinal  arti- 
cles of  the  P^piscopal  Church.  4  Blackstone,  53.  (6)  They 
are  still  nonconformists,  Mass.  Hist.  Coll.  IX.  42,  n. ;  that  is 

religion.  It  went  against  their  consciences  that  the  Roman  Catholics 
should  enjoy  the  liberty  of  conscience.  1  Pol.  Mag.  504;  2  Boswell's  Life 
of  Johnson,  105-113. 

(a)  Mass.  Hist.  Soc,  1795,  pp.  135,  222;  3  Senator,  140. 

The  subjects  of  these  colonies  (Massachusetts,  Plymouth,  New  Haven, 
and  Connecticut,  including  Kew  Hampshire)  are  of  the  same  faith  and 
belief,  in  all  points  of  doctrine,  with  the  Church  of  England  and  other 
reformed  churches,  though  not  alike  persuaded  in  some  matters  of  order, 
&c.  Mass.  Hist.  Coll.  i.  175.  The  synod  which  framed  the  New  England 
Platform  of  Church  Discipline  recommended  to  the  General  Court  and  the 
churches  the  Westminster  Confession  of  Faith.  Mass.  Hist.  Coll.  VH.  25  ; 
Mass.  Hist.  Coll.  IX.  40,  &c.  See  1  Holmes,  American  Annals,  345,  484; 
Winthrop's  Journal,  194. 

(6)  This  is  expressed  too  strongly.  All  are  required  to  subscribe;  some 
refuse,     47  Monthly  Review,  102. 


MAY   TERM,  1803.  17 


Muzzy  V.  Wilkin8. 


they  refuse  to  conform  to  the  peculiar  rites,  ceremonies,  dis- 
cipline, government,  and  externals  of  religion  as  practised  in 
tlie  Episcopal  Church,  because  they  profess  to  believe  them 
unscriptural.  But,  notwithstanding  this  agreement  between 
the  different  sects  as  sects,  bodies  of  men,  or  distinct  societies, 
yet  the  individual  members  of  each  of  these  sects  differ  widely 
in  faith  and  doctrine.  («) 

In  the  Episcopal  Church  there  are  Calvinists,  Arminians, 
Universalists,  &c.  The  same  may  be  said  of  the  Presbyterian 
and  Congregational  Churches.  If  we  say  that  articles  of  faith 
are  what  only  distinguishes  sects,  then  Episcopalians,  Presby- 
terians, and  Congregationalists  are  of  the  same  sect.  If  we 
say  that  doctrinal  points  enter  into  the  discrimination  at  all, 
then  individuals  among  Presbyterians,  Congregationalists,  and 
Episcopalians  are  of  the  same  sect,  for  they  are  Calvinists, 
Arminians,  Universalists,  &c.  ;  and  individuals  in  the  Episco- 
pal Church  are  of  different  sects,  for  some  are  Calvinists,  some 
Arminians,  some  Universalists,  &c.  But  according  to'  the 
common  and  usual  acceptation  of  the  term  sects,  (6)  matters 
of  faith  are  not  considered.  The  Episcopalians  are  a  sect ; 
the  Presbyterians  are  a  sect,  &c.  The  individual  members  do 
not  agree  in  doctrine,  and  among  Episcopalians  there  are 
not  many  sects,  though  there  is  much  diversity  of  opinion  in 
articles  of  faith,  and  perhaps  no  two  Episcopalians  understand 
the  Thirty-nine  Articles  precisely  in  the  same  sense  ;  yet  they 
are  all  of  one  denomination. 

(a)  1  Doug.  440,  says  the  Synod  at  Cambridge,  N,  E.,  1648,  agreed 
to  the  Westminster  Confession  of  Faith  of  1646,  in  matters  of  faith  and 
doctrine,  but  composed  a  platform  of  their  own  for  discipline. 

In  1680,  the  Confession  of  Faith  nearly  the  same  with  that  of  the 
Independents  in  England,  called  the  Savoy  Confession  of  Faith  (Oct.  12, 
1658),  and  seemed  to  renounce  the  models  of  Geneva  and  Scotland.  See 
id.  442,  not  different  in  doctrine,  but  church  government,  &c. 

Plymouth  Colony  address  to  Charles  II  ,  Chalmers,  105,  106,  agreeing  in 
doctrinal  points  of  religion  with  the  profession  of  the  Church  of  England 
and  other  reformed  churches,  &c. 

(6)  Dr.  Tucker,  in  his  remarks  on  Mr.  Parsons's  sermons,  in  which  the 
latter  had  spoken  of  Calvinists  as  a  denomination,  says.  This  is  the  first 
time  I  ever  heard  of  them  as  a  distinct  sect  or  denomination  of  Protestants. 

2 


18  HILLSBOROUGH. 

Muzzy  V.  Wilkins. 

If,  therefore,  we  allow  doctrinal  articles  to  enter  into  the 
definition  of  sect,  the  term  becomes  immediately  indefinite 
and  uncertain  in  its  meaning  ;  and,  what  is  more  to  our  pur- 
pose, affixing  this  sense  to  the  term  will  render  altogether 
nugatory  that  clause  in  the  Constitution  which  enables  cor- 
porate bodies  to  support  and  maintain  public  instruction  in 
religion  and  morality.  To  illustrate  this  idea,  let  us  suppose  a 
whole  town  or  parish  to  be  composed  of  Episcopalians.  They 
elect  an  Episcopalian  teacher.  An  individual  refuses  to  pay, 
because  the  majority  or  the  parson  is  a  Calvinist,  and  he  an 
Arminian.  How  is  this  matter  to  be  tried  ?  Who  shall  deter- 
mine as  to  the  creed  of  the  parson  or  the  person  claiming 
exemption  ?  We  must  take  the  parties'  word  for  it  ;  we  can- 
not have  better  evidence.  Then  the  cprporation  may  make  a 
contract  as  a  corporate  body,  and  yet  every  individual  upon 
his  own  declaration  merely  may  be  loosed  from  the  bond. 
What  is  this  but  saying  that  the  corporation  may  coerce  all 
who  choose  to  be  coerced  ;  may  force  the  willing,  but  not  the 
unwilling  ;  or,  in  other  words,  the  corporation  shall  not 
exercise  any  of  the  powers  of  a  corporate  body. 

This  absurdity  is  not  attached  to  the  other  opinion,  namely, 
that  a  difference  in  government,  discipline,  and  worship  alone 
constitutes  the  difference  of  sects  and  denominations,  (a)  If 
an  individual  claims  exemption  on  the  ground  that  he  is  a 
Baptist,  &c.,  the  truth  or  falsehood  of  his  plea  may  be  exam- 
ined and  tried  by  a  jury.  Though  God  alone  is  the  absolute 
judge  of  a  man's  faith  and  of  his  conscience,  yet  tlie  world 
can  judge  as  to  what  sect  he  belongs.^  Circumstances  will 
serve  to  evince  whether  he  is  what  he  professes  to  be  or  not, 

(a)  Forms,  ceremonies,  &c.,  of  the  Church  of  Eingland  caused  the  set- 
tlement of  New  England.  See  1  Hubbard,  lot,  ^c.  "  Conscience  in  point 
of  God's  worship  "  was  the  main  end  of  coming  here,  —  those  of  different 
persuasions  respecting  church  government  cannot  join  us,  &c.  Morton's 
Mem.  418. 

"  Sects,  in  England,  are  formed  by  reason  of  disagreement  in  points  of 
discipline  and  external  forms  of  worship."  Middleton  on  Miracles, 
cxiii.  The  Church  and  dissenters  agree  on  essentials,  and  differ  only 
about  things  indifferent.     Id. 

1  Blackst.  Appendix,  151. 


MAY   TERM,   1803.  19 

Muzzy  V.  Wilkins. 

whether  he  is  sincere  in  his  declarations  that  he  belongs  to 
this  or  that  sect.  Is  he  consistent  throughout  ?  do  his  actions 
correspond  with  his  declarations  ?  All  these  things  may  be 
and  must  be  manifested  by  overt  acts.  It  is  a  just  and  excel- 
lent maxim,  which  will  hold  good  in  this  as  in  all  other  cases, 
"  By  their  fruits  ye  shall  know  them."  If  he  is  really  and 
truly  a  Baptist,  as  he  professes  to  be,  it  will  appear.  lie  will 
attend  their  meetings,  not  now  and  then,  but  frequently,  con- 
stantly. He  will  join  with  them  in  divine  worship  in  their  way, 
not  occasionally,  but  statedly.  He  will  conform  to  their  rites 
and  ceremonies,  submit  himself  to  their  government  and  dis- 
cipline. Is  his  profession  assumed  merely  that  it  may  serve 
as  a  cloak  to  screen  him  from  paying  taxes  in  the  society  to 
which  he  belongs  ?  His  actions  will  demonstrate.  If  his  ac- 
tions show  this,  he  is  a  pretended,  not  a  real,  Baptist ;  and 
his  profession  shall  not  avail  him.  So  if  he  has  joined  differ- 
ent sects  at  different  times,  and  especially  if  he  has  done  so 
from  improper  views,  (a)  So  if  he  appear  to  be  an  atheist, 
deist,  a  reviler  and  contemner  of  religion,  or  a  person  of  no 
religion.  (6)  All  these  things  are  capable  of  proof.  But  how 
shall  it  be  proved  what  is  the  doctrinal  belief  of  a  parish,  or 
even  of  a  parish  priest,  or  any  individual  member  ?  Who  is 
capable  of  ascertaining  precisely  who  are  Calvinists  and  Avho 
Arminians,  who  are  Arians  and  who  Socinians  ?  It  would 
many  times  puzzle  a  jury  of  theological  doctors  to  decide. 
I  may  add,  it  would  puzzle  many  people  to  pronounce  as  to 
their  own  creed.  Most  people,  I  presume,  have  opinions  in 
matters  of  religion  ;  but  there  are  few  who  can  tell  what  they 
are,  and  fewer  still  who  can  compare  them  with  the  opinion 
of  others  and  mark  their  agreement  and  their  disagreement. 
It  would  require  a  very  nice  compass  and  a  skilful  theologi- 
cal surveyor  to  run  the  divisional  line  between  Calvinists  and 

(a)  But  merely  worshipping  with  other  denominations  occasionally, 
and  even  conforming  to  their  rites,  is  not  evidence  that  the  person  is 
insincere  in  his  profession.  The  famous  Baxter,  a  Presbyterian,  who 
refused  the  bishopric  of  Hereford,  1661,  frequently  attended  divine  service 
in  the  Church  of  England,  went  to  the  sacrament,  and  persuaded  others 
to  do  the  same.     2  Rapin,  744,  n.  4. 

(b)  Lord  Mansfield,  Blackst.  Appendix,  145-152. 


20  HILLSBOROUGH. 

Muzzy  V.  Wilkins. 

Hopkinsians.  What  allowance  shall  he  make  for  the  variation 
of  the  needle  ?  We  have  new  and  old  Calvinists,  rigid  and 
liberal  Hopkinsians,  new  and  old  divinity,  (a) 

Disagreement  in  opinion  as  to  the  doctrines  maintained  by 
sects  may  have  many  times  occasioned  new  sects  to  spring  up. 
But  every  difference  of  opinion  has  not  proceeded  to  this 
length  ;  and  even  where  it  has  occasioned  a  separation,  the 
dissenters  generally,  if  not  always,  differ  more  in  government, 
discipline,  and  worship,  that  is,  in  the  externals,  than  in  arti- 
cles of  faith.  It  is  wholly  immaterial  to  our  present  purpose 
whether  doctrine,  or  government  and  discipline,  is  of  the 
greater  or  less  importance.  The  former  does  not,  and  the 
latter  do,  admit  of  being  known  and  established  by  evidence. 
At  the  same  time,  it  may  be  proper  to  remark  that  mankind 
have  at  all  times  more  obstinately  adhered  to  the  ceremonies 
of  religion  tlian  to  the  doctrinal  parts.  The  externals  of  relig- 
ion have  always  made  a  greater  impression  on  the  multitude 
than  the  internals.  (6) 

We  may  then  safely  conclude  that  by  sects  spoken  of  in 
the  Constitution  we  are  to  understand  a  body  of  Christians 
cut  off  or  separated  from  the  rest,  —  for  this  is  the  strict  mean- 
ing of  the  word  (8  Senator,  585),  (c)  —  who  live  apart  and  by 
themselves,  having  a  form  of  church  government,  discipline, 
and  worship  different  from  others,  and  especially  from  those 
from  whom  they  separated,  and  who  thus,  forming  a  distinct 
sect,  section,  or  society,  acquire  a  name  or  denomination. 

In  ascertaining  the  sense  and  meaning  of  laws  and  consti- 
tutions, little  confidence,  perhaps,  is  to  be  placed  in  the  strict 
meaning  of  words,  or  on  arguments  deduced  from  nice  and 
critical  construction.  If  it  would  not  be  thought  refining  too 
much  in  this  way,  I  would  observe  that  each  of  the  words 

(a)  The  original  Congregationalists  have  always  held  that  the  distin- 
guishing character  of  sect  is  polity,  not  doctrines.  65  Christian  Exam- 
iner, 200;  Lamson's  Dudley  Lecture. 

(J))  1  Gibb.  4G0;  2  Rapin,  363. 

(c)  1  Gibb.  467,  503.  If  mere  difference  in  doctrine  should  exempt 
any,  it  should  be  Unitariaus.  Blackst.  Appendix,  Priestley  to  Black- 
stone,  17,  n. 


MAY   TERM,  1803.  21 

Muzzy  V.  Wilkins. 

used  in  the  paragraph  under  consideration  lias  a  particular 
and  appropriate  meaning,  and  that  altogether  they  bear 
the  sense  I  have  put  upon  them.  Persuasion  refers  to  the 
opinion,  conviction,  or  belief  which  occasions  the  separation. 
Sect  means  the  party  persuaded,  or  who,  entertaining  opin- 
ions different  from  the  rest,  are  cut  off  or  separated  from 
the  main  body.  Denomination  is  the  next  step  in  the  process. 
It  signifies  the  name  the  sect  acquires  when  actually  separated, 
and  which  is  generally  descriptive  of  the  principal  points  in 
difference,  (a)  Thus  Episcopacy  is  the  government  of  the 
church  by  bishops,  in  opposition  to  Presbyterianism,  or  the 
government  of  the  church  by  presbyteries  or  presbyters. 
Independents  are  so  called  from  their  maintaining,  in  opposi- 
tion to  both  the  other  sects,  that  each  congregation  is  a  complete 
church,  and  is  in  no  respect  subject  to  the  control  of  others. 
The  same  observations  may  be  made  respecting  Baptists, 
Quakers,  &c.  Where  the  difference  is  respecting  matters  of 
faith,  the  founder  of  the  particular  opinions  generally  gives 
his  name  to  the  disciples  of  that  faith,  as  Calvinists,  Lutherans, 
Arminians,  Arians,  Socinians,  &c.  It  is  true,  as  has  been 
observed,  that  the  word  persuasion  is  oftentimes  used  with 
reference  to  sentiments  or  belief  in  doctrines.  It  is  so  used 
in  Article  V.  But  it  is  also  used  as  synonymous  with  the 
words  sect  and  denomination.  (6)  In  this  place  it  cannot 
alter  the  sense.  In  another  part  of  this  Article  the  same  idea 
is  conveyed  by  tiie  word  denomination  alone.  So  sect  and 
denomination  are  in  this  very  paragraph  used  as  equivalent  to 
the  three  words,  persuasion,  sect,  and  denomination.  This 
construction  gives  us  solid  ground  to  stand  upon.  Persuasion, 
sect,  or  denomination  comprehend  Episcopalians,  Baptists, 
Congregationalists,  Quakers,  &c.     Among  these  the  discrim- 

(a)  Presbyterians   and   Independents   spoken   of   as  distinct   sects.     1 
Holmes,  American  Annals,  442,  448,  n. 

X.   Lingard,   158,   &c.     Principles  of  Presbyterians  and  Independents 
essentially  different. 

(b)  Province  Laws,  p.  55 ;  Temporary  Laws,  49,  50.     In  4  Belsham, 
Geo.  III.  216,  it  is  applied  to  Methodists,  Dissenters,  Churchmen. 

2   Rapin,  742,  n.    G;    1  Ilapin,   849;    1  Dryden,  Preface  to  Hind  and 
Panther,  235. 


22  HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


inating  features  are  well  marked,  —  it  is  true,  with  lines  of 
different  degrees  of  distinctness  and  boldness,  but  still,  with 
respect  to  all,  marked  and  known.  There  are  known  bounds 
and  limits  to  sects  and  denominations.  But,  if  matters  of 
doctrine  discriminate,  how  far  shall  it  be  carried,  where  shall 
we  stop  ?  There  are  a  great  number  of  divisions  which  have 
acquired  a  name  of  distinction,  but  the  real  divisions  are  still 
more  numerous.  No  two  persons  precisely  agree  together, 
and  the  same  man  at  different  times  differs  from  himself,  (a) 

V.  Our  next  inquiry  is,  Do  Presbyterians  differ  from  Con- 
gregationalists  in  discipline,  church  government,  and  worship, 
in  the  external  forms  ;  are  they  a  separate  and  distinct 
society  ;  do  they  usually  associate  and  worship  by  them- 
selves ?  (6)  If  we  apply  these  tests  to  deists  (for  as  to  athe- 
ists, it  is  not  proper  to  consider  them  as  a  religious  sect), 
Calvinists,  Arminians,  Hopkinsians,  Universalists,  &c.,  it  will 
appear  that  these  are  not  distinct  sects :  they  are  found 
blended  with  all  sects.  Among  Episcopalians  there  are  Cal- 
vinists and  Arminians  ;  there  are  .also  many  Universalists. 
Some  of  the  dignitaries  of  the  Church  have  embraced  the 
Universal  scheme  ;  Bishop  Newton  was  a  Universalist. 
Among  the  Congregationalists  and  Independents  we  may 
mention  Dr.  Priestley,  Dr.  Chauncey,  Dr.  Huntingdon,  &c. 
Generally  speaking,  the  Universalists  have  no  distinct  formu- 
lary of  government  and  discipline.  In  large  towns  they 
sometimes  associate  and  worship  together,  (e)  But  embrac- 
ing this  tenet  makes,  in  general,  no  more  difference  as  to  the 

(a)  1  Rapin,  32'2;  67  Monthly  Review,  18. 

(b)  See  Hubbard,  I.  ch.  28,  p.  182,  183,  &c.;  2  Hubbard,  415,  416. 
Id.  418.     "  A  Presbyterial  spirit"  was  a  term  of  reproach,  as  excluding 

the  brethren. 

(c)  So  do  Calvinists,  &c.  Now  and  then  we  find  a  Calvinistic  society 
in  the  country. 

That  Universalists  are  not  a  distinct  sect  from  Congregationalists  must 
now  be  considered  as  settled  by  the  decision  in  Henderson  Sf  Peckham  v. 
Erxkine,  in  error,  Cheshire,  October  Term,  1802. 

In  the  nature  of  things  there  is  no  more  ground  to  exempt  Universal- 
ists than  Arminians  from  paying  towards  the  support  of  a  Hopkinsian 
teacher. 


MAY  TERM,  1803.  23 

Muzzy  V.  Wilkins. 

form    of   church   government  and  discipline  than  embracing 
the  Calvinist,  Arminian,  Hopkinsian  opinions  does. 

Let  us  now  apply  theee  tests  to  Presbyterians  and  Con- 
gregationalists. 

1.  The  Presbyterians  have  a  distinct  directory  of  church 
government  and  discipline  set  forth  in  the  same  volume  with 
their  Confession  of  Faith,  but  separate  and  distinct  from  it.  (a) 
Just  so  the  Congregationalists  have  their  code,  called  the  Plat- 
form of  Church  Discipline,  agreed  upon  at  Cambridge,  1648,  and 
afterwards  ratified  in  1680.  They  have  also  their  Confession 
of  Faith,  in  sul)stance  agreeing  with  the  Presbyterian  and  the 
Episcopal,  and  differing  little  from  the  Romish. 

2.  Presbyterians  usually  worship  by  themselves,  and  form  a 
distinct  society  from  the  other  sects.  Let  us  look  at  their  ori- 
gin. ("Presbyterians,"  "Independents," Encyclopedia.)  They 
are  as  old  as  the  Reformation.  With  the  Lutherans  they  sepa- 
rated from  the  Church  of  Rome,  but  they  soon  separated  from 
each  other.  The  Lutherans  established  the  Episcopal  form  of 
church  government.  The  disciples  of  Calvin  established  the 
Presbyterian,  and  it  has  existed  ever  since  on  the  continent. 
It  was  afterwards  established  in  Scotland,  and  carried  by  the 
Scotch,  who  immigrated  in  great  numbers  to  Ireland,  and 
planted  there.  It  was  brought  both  from  Scotland  and  Ire- 
land to  this  country,  and  churches  have  been  formed  here  on 
the  model  of  the  Church  of  Scotland,  and  professing  to  be 
governed  by  the  same  directory.  Presbyterians,  as  Bishop 
Warburton  justly  observes,  did  not  spring  from  fanaticism,  as 
many  wild  sects  have  done.  (6) 

The  Independents  are  a  sect  of  modern  date,  (c)  The 
hierarchy  established  by  Queen  Elizabeth,  the  vestments  {d) 
worn  by  the  clergy  in  the  celebration  of  divine  worship,  the 

(rt)  See  18  Quarterly  Review,  428;  peculiarly  fitted  for  Scotland. 

(b)  Rapin  considers  Independents  as  springing  from  the  Presbyterians. 
Indeed,  he  uses  the  word  Presbyterian  as  a  general  terna  in  opposition  to 
Episcopal.     2  Rapin,  352,  514,  n.  1. 

(c)  See  Mass.  Hist.  Coll.  V.  206.     Origin  of  Congregational  Churches. 
See  Origin  of  Congregationalism,  Mass.  Hist.  Coll.  VII.  205. 
Separation  from  Episcopal  Church.     Mass.  Hist.  Coll.  IX.  101. 

((/)  Mass.  Hist.  Coll.  IX.  171 ;  1  Holmes,  American  Annals,  95,  n., 
and  483. 


24  HILLSBOROUGH. 


Muzzy  V.  Wilkin8. 


Book  of  Common  Prayer,  (a)  the  sign  of  the  cross  used  in 
baptism,  &c.,  were  considered  by  many  persons  as  too  nearly 
resembling  Popery ;  and  a  purer  worship  and  more  perfect 
reformation  were  demanded.  These  persons  Avere  called 
Puritans.  (J)  They  divided  from  the  Church,  or  rather  the 
Church  cast  them  out.  Brown  (c)  first,  and  Robinson  after- 
wards, moulded  a  certain  portion  of  this  mass  into  the  sect 
now  known  in  England  by  the  name  of  Independents.  From 
thence  sprung  Congregationalists  in  this  country.  (cZ)     Both 

(a)  Mather's  Magnalia,  III.  157;  19  Quarterly  Review,  91. 

See  First  Formation  of  Congregational  or  Independent  Churches. 
1  Mass.  Hist.  Coll.  I.  n.  s.  165,  166.  See  id.  200,  ante  &nd  post.  Congre- 
gationalism.    Id.  ix.,  Davis's  Disc. 

1  Heart  of  Mid-Lothian,  90.  "  The  air  of  Scotland  was  alien  to  the 
growth  of  Independence,  though  favorable  to  fanaticism  under  other 
colors." 

The  Presbyterian  Church  seems  no  better  disposed  to  Congregational- 
ism than  the  Episcopal. 

(b)  42  Monthly  Review,  27;  19  Quarterly  Review,  91,  95.  The 
grounds  of  dissenting  at  this  day.  47  Monthly  Review,  102,  103,  &c. ; 
Mass.  Hist.  Coll.  IX.  10-12,  &c. ;  McCrie's  Life  of  Knox,  82,  83,  427, 
1  Neal's  Hist.  Puritans,  108,  56S-570.  The  Council  ordered  the  altars 
to  be  removed  from  the  churches  (as  the  retaining  them  would  serve 
only  to  nourish  in  the  minds  of  the  people  the  opinion  of  a  propitiatory 
mass),  and  tables  for  sacramental  occasions  to  be  used  in  their  stead. 
Day,  Bisliop  of  Chichester,  and  Heath,  Bishop  of  Worcester,  refused  to 
comply,  insisting  on  the  Apostle's  words,  "We  have  an  altar;"  and, 
rather  than  comply,  they  suffered  themselves  to  be  deprived  of  their 
bishoprics  for  contumacy.     Oct.  1551. 

See  vindication  of  this,  1  Neal,  568-570,  and  108,  after  the  above 
passage. 

(c)  The  Brownists  spoken  of  as  a  sect.  2  Rapin,  471;  Mass  Hist. 
Coll.  IX.  10,  11,  &c.,  n. 

(fi)  Mass.  Hist.  Soc.  1795,  IV.  134;  Mass.  Hist.  Soc.  1800,  VII. 
265,  &c. 

Congregationalists;  origin  of  name.     1  Holmes,  American  Annals,  271. 

(It  would  seem  this  account  is  not  correct.  See  1  Holmes,  American 
Annals,  484.)  Puritans.  1  Holmes,  American  Annals,  240,  243.  It  is 
not  easy  to  say  what  they  were;  but  they  were  non-conformists,  some 
more  and  some  less  hostile  to  the  Church;  perhaps  none  of  the  Brown 
sect,  at  least  they  ceased  to  be  so  long. 

See  Robbins,  New  England  Fathers":  Brownists,  43,  120,  125,  139; 
Independents,  43,  122,  128;  Savoy  Confession,  128. 


MAY   TERM,   1803.  25 

Muzzy  V.  Wilkins. 

in  the  Old  World  and  in  this,  Presbyterians,  Independents,  or 
Congregationalists  form  distinct  religious  societies  or  churches. 
The  same  learned  prelate  I  have  already  quoted,  treating  of 
the  origin  of  the  Independents,  says  they  are  the  spawn  of 
the  persecuted  Puritans.  3  Warb.  Serm.  267,  272  ;  2  Rapin, 
802.  (a) 

3.  So  much  for  the  origin  of  the  two  sects  ;  but  still  it  may 
be  asked.  Do  Presbyterians  and  Congregationalists  differ  from 
each  other?  They  think  they  differ,  for  they  live  apart  from 
each  other,  and  form  distinct  societies.  Winthrop's  Journal, 
308,  309.  The  Independents  in  England  and  the  Congre- 
gationalists here  have  not  yet  adopted  the  Westminster 
Confession  of  Faith,  and  directory  and  form  of  Presbyterian 
church  government  and  discipline.  And  the  Established 
Church  of  Scotland  have  yet  manifested  no  desire  to  ex- 
change it  for  the  New  England  Platform.  (5)  But  Pres- 
byterians and  Independents  have  given  higher,  if  not  better, 
evidence  of  their  being,  at  least  in  their  own  opinion,  distinct 
sects ;  for  they  have  persecuted  each  other  even  unto  the 
death,  with  all  the  rancor  of  religious  hate,  when  either  could 
get  the  sword  of  the  civil  magistrate  into  their  own  hands. 
2  Rapin,  546.  (c) 

4.  It  has  been  mentioned  that  Presbyterians  and  Congre- 
gationalists have  distinct  directories  or  platforms  of  church 
government  and  discipline.  If  we  look  into  these,  we  shall 
find  that  they  differ  as  much  as  other  sects. 

(1.)  As  it  respects  different  orders  of  men  in  the  church, 
ordination,  &c. 

The  Presbyterians  believe  that  there  is  a  permanent  order 

of   ministers   in    the  church  ;    that    the    authority   of    those 

(a)   As  to  the  rise  of  the  Independent  sect,  see  2  Rapin,  514,  and  n.  1. 

(6)  An  attempt  was  made  before  16i8  to  introduce  tie  Presbyterian 
government  and  discipline  in  one  of  the  New  England  churches.  This 
was  almost  as  opposite  to  the  principles  of  the  fathers  of  New  England  as 
the  Church  of  England.  Mass.  Hist.  Coll.  IX.  48;  1  Holmes,  American 
Annals,  339;  2  id.  72,  73. 

Origin  of  Congregationalists  in  New  England.  1  Holmes,  American 
Annals,  95,  19G,  484. 


26  HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


ministers  to  preach  the  gospel,  to  administer  the  sacraments, 
is  derived  from  the  Holy  Ghost  by  the  imposition  of  the 
hands  of  the  presbytery  ;  tbat  in  all  the  externals  of  religion, 
the  great  body  of  Christians  are  bound  to  obey.  In  short, 
they  agree  with  the  Episcopalians,  that  there  is  a  permanent 
order  of  ministeis  ;  l)Ut  they  differ  from  Episcopalians  in  the 
number  of  orders  and  in  the  manner  of  their  creation,  — 
the  Episcopalians  maintaining  that  there  are  divers  orders, 
bishops,  presbyters,  and  deacons,  and  that  the  highest  only 
has  the  power  of  ordination  ;  while  the  Presbyterians  main- 
tain that  there  is  only  one  order,  namely,  presbyters.  Both 
deny  the  validity  of  lay  ordination. 

The  Independents  and  Congregationalists  (a)  differ  from 
both.  They  deny  that  there  is  any  permanent  order  of 
ministers  constituted  by  Christ  or  his  Apostles ;  [they 
believe]  that  a  man  may  become  a  minister  without  the 
sanction  of  any  permanent  order  of  men.  They  believe  that 
the  imposition  of  the  hands  of  a  bishop  or  presbytery  con- 
veys no  spiritual  powers  or  prerogatives  ;  that  a  man  may 
be  constituted  a  pastor  by  election  of  the  church  and  ac- 
ceptance on  his  part ;  (6)  these  are  every  thing  ;  "  ordi- 
nation is  nothing  but  the  putting  a  man  into  his  place  and 
office,  whereunto  he  had  right  before,"  and  may  be  performed 
by  the  brethren  of  the  church,  (c)     They  attribute  no  virtue 

(a)  Encyclopedia;  "Independent"  New  England  Platform;  Wise, 
&c.;  Mass.  Hist.  Soc.  1794,  67,  68;  Mass.  Hist.  Soc.  1799,  VI.  242, 
260;  Bentley's  History  of  Salem. 

As  to  the  elders,  who  usually  assisted  in  ordination,  see  History  of 
Salem,  above. 

Winthrop's  Journal,  95,  96;  Mass.  Hist.  Soc.  VII.  1800,  265,  272. 

(h)  Mass.  Hist.  Coll.  VI.  242,  &c.,  260  ;  VII.  id.  125. 

It  seems  ministers  who  had  been  before  ordained  were  ordained  over 
again.  Mass.  Hist.  Coll.  VII.  125  ;  and  Bentley's  History  of  Salem  ;  Mass. 
Hist.  Coll.  VI.  passim;  Winthrop's  Journal,  12;i,  124. 

Sed  vide,  Mass.  Hist.  Coll.  IX.  12,  &c. 

(c)  How  a  church  is  formed.  See  Mass.  Hist.  Coll.  VII.  14,  15,  &o.  ; 
Mass.  Hist.  Coll.  IX.  192,  193. 

Ordination  by  the  brethren  of  the  church.  Mass.  Hist.  Coll.  VII.  39. 
One  ordained  by  a  bishop  ordained  again  as  a  Congregationalist. 

See    President    Stiles's   Election    Sermon,    2d   ed.    103.      Ordination. 


MAY   TERM,   1803.  27 

Muzzy  V.  Wilkins. 

whatever  to  the  rite  of  ordination,  upon  which  Presbyterians, 
as  well  as  Episcopalians,  lay  so  much  stress. 

(2.)  The  Presbyterians  maintain  that  ministers  constituted 
in  their  mode,  together  with  a  certain  number  of  laymen 
(chosen  and  ordained  by  them),  form  a  judicature  (1  Hub- 
bard, 184,  189),  and  are  clothed  with  certain  powers  in 
ecclesiastical  matters,  extending  over  all  Presbyterians  in  the 
same  kingdom  or  state.  Such  society  or  parish  has  its 
session  ;  a  number  of  parishes  form  a  presbytery  ;  a  larger 
division  a  synod,  —  and  the  whole  are  united  under  a  general 
assembly.  Churches  or  societies  are  not  independent  of 
each  other,  but  connected  and  dependent.  These  different 
judicatories  have  cognizance  of  all  questions  relative  to  the 
government  and  discipline  of  the  church  and  congregation. 
They  examine,  admit,  ordain,  and  censure  ministers ;  they 
license  probationers ;  censure  gross  and  contumacious  sin- 
ners ;  direct  the  sentence  of  excommunication ;  resolve  cases 
of  conscience  ;  explain  difficulties  in  doctrine  or  discipline. 
In  these  particulars  consist  the  external  order,  strength,  and 
steadfastness  of  the  Presbyterian  Church. 

Mass.  Hist.  Coll.  IX.  3,  39  ;  1  Holmes,  American  Annals,  198,  199,  250, 
251,  308,  309,  315,  354,  372.     1  Hazard's  Collection,  490. 

There  is  this  difference  (in  ancient  times  at  least)  between  Congrega- 
tionalists,  and  Episcopalians  and  Presbyterians.  In  the  two  latter,  ordi- 
nation does  not  connect  a  man  with  a  particular  church ;  with  the  former 
it  does ;  the  consent  of  the  people  is  every  thing ;  at  first  the  church  was 
every  thing  ;  since  the  town  consent.  It  seems  the  establishment  of  a  new 
church  does  not  affect  the  contract  made  by  the  old  with  a  minister,  and 
it  seems  consent  of  the  town  is  now  necessary  to  dissolve  ministerial  con- 
nection (unless  perhaps  where  there  is  the  advice  of  council  to  authorize 
the  ohurch  to  do  it.) 

Mass.  Hist.  Coll.  IX.  135,  136 ;  badly  reported. 

Ordained  minister  connected  with  a  church,  but  not  congregation  — 
common.  Mass.  Hist.  Coll.  IX.  156.  How  church  formed.  Mass.  Hist. 
Coll.  IX.  154.  Locality  of  a  church.  2  Holmes,  American  Annals,  33, 
34,  42. 

Winthrop's  Journal,  213.  A  church  in  early  time,  1640,  might  ordain 
a  pastor  privately  ;  but  the  common  practice  then  was  to  give  notice  of  the 
ordination  to  the  neighboring  churches  and  to  the  magistrates.  This  lat- 
ter is  now  disused.     Winthrop's  Journal,  268. 


28  HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


Among  Congregationalists  (a)  each  church  is  independent, 
if  it  chooses  to  be  so.  Each  chooses  and  expels  its  members  and 
its  officers,  and  the  sentence  is  final.  Mass.  Hist.  Coll.  IV.  134, 
135;  Mass.  Hist.  Coll.  IX.  12,  &c.,  15,  &c.  Winthrop's 
Journal,  55,  56,  and  ante,  57  ;  Colony  Laws,  101.  Among 
Presbyterians,  if  a  member  is  expelled  or  excommunicated,  he 
may  be  restored  by  a  higher  tribunal,  and  those  who  expelled 
him  sentenced  to  take  his  place.  The  Episcopalians,  in  mat- 
ters of  faith,  discipline,  and  government,  acknowledge,  as  su- 
perior, the  king,  bishops,  &c.  The  Presbyterians,  in  matters  of 
government  and  discipline,  acknowledge,  as  superior,  synods 
and  general  assemblies.  (A)  Each  Congregational  church 
acknowledges  no  superior  on  earth  (Winthrop's  Journal,  57), 
Colony  Laws,  101.  Congregationalists  also  differ  from  Pres- 
byterians in  the  mode  of  admission  into  the  church.  They 
generall}'  require  written  or  oral  declarations  of  faith  and 
religious  experiences.  Mass.  Hist.  Coll.  IX.  16,  n.  (c) 
Some  Congregational  churches  also  differ  as  to  baptism, 
denying  it  to  all  but  children  of  believers  in  full  communion  ; 
others  require  a  sort  of  half  communion.     To  conclude  what 

(«)  Encyclopedia;  "Independents."     Wise,  20G,  209,  221,  224. 

This  is  that  which  principally  characterizes  the  sect.  2  Rapin,  514,  and 
n.  1. 

Mass.  Hist.  Coll.  IX.  14,  15. 

Some  say  the  Congregationalist  is  a  middle  way  between  Presbyterians 
and  Brownists. 

Wherein  Congregationalists  differ  from  others.  Mass.  Hist.  Coll.  IX. 
15,  &c. 

(6)  And  each  contends  that  his  form  of  government.  Episcopal  and 
Presbyterian,  is  most  suitable  to  the  word  of  God  andyure  divino.  2  Rapin, 
510,  n.  1;  id.  573. 

Congregationalists  have  synods,  but  they  have  no  authority,  &c.  Mass. 
Hist.  Coll.  IX.  32. 

Independency.  Ministers  ordained  over  again;  members  dismissed 
from  one  church  received  into  another  in  the  same  manner  as  if  they  never 
l^^d  been  members  of  any  church.     Winthrop's  Journal,  64;  passim,  95. 

(c)  1690-1717.  The  church  of  Cambridge  voted  that  a  formal  and 
public  relation  of  religious  experiences  as  a  qualification  for  church  fellow- 
ship was  unnecessary.  Mass.  Hist.  Coll.  VII.  32;  Mass.  Hist.  Coll.  IX.  3. 
See  Winthrop's  Journal,  106,  167. 


MAY   TERM,  1803.  29 

Muzzy  V.  Wilkins. 

I  have  to  say  on  church  government,  the  Episcopalian  Church 
is  monarchical,  the  Presbyterian  aristocratical,  (a)  and  the 
Congregational  democratical.  (6) 

(3.)  In  worship  there  is  little  difference  between  the  two 
sects.  But  still  tliere  is  some.  In  the  administration  of  the 
Lord's  Supper  the  Presbyterian  mode  is  reckoned  the  most 
solemn.  Many  Presbyterians  esteem  the  difference  as  matter 
of  consequence,  though  perhaps  few  carry  it  so  far  as  the 
present  plaintiff.  He  thinks  it  important  that  the  bread 
should  have  no  leaven  in  it.  Even  this  seems  to  be  of  as 
much  consequence  as  one  of  the  stumbling-blocks  to  the 
Puritans,  and  which  was  one  of  the  causes  that  led  to  the 
separation  from  the  Episcopal  Church,  —  the  matter  of  the  altar, 
and  the  garments  worn  by  the  priests  on  these  occasions. 

5.  From  this  very  brief  view  of  the  two  sects,  I  think  myself 
warranted  in  saying  that  Presbyterians  and  Congregationalists 
differ  from  each  other  as  much  at  least  as  Baptists  do  from 
either,  (c) 

(a)  Republican.     27  Edinburgh  Review,  335. 

(6)  The  Scriptures  do  not  lay  down  any  precise  rules  as  to  the  ar- 
rangement of  public  worship,  the  form  of  church  government,  disci- 
pline, &c.  It  is  not,  therefore,  wonderful  that  persons  professing  to  take 
the  Scriptures  as  their  guide  should  entertain  different  opinions  on  these 
subjects. 

5  Quarterly  Review,  334,  calls  Presbyterian  establishment  a  repub- 
lican government. 

18  Quarterly  Review,  429;  4  Burke,  112. 

2  Burnet,  Own  Times,  406,  407. 

(f)  And  as  much  as  Presbyterians  differ  from  Episcopalians. 

Few  foreign  Protestants  (Presbyterians)  scruple  to  communicate  with 
the  Church  of  England.     2  Rapin,  784,  804. 

The  hierarchy  is  the  principal  point  on  which  Presbyterians  and  Epis- 
copalians are  divided.     2  Rapin,  802,  805. 

Mather's  Magnaha,  passim,  et  13,  14,  20;  N.  H.  Hist.  Coll.  I.  77; 
Penhallow. 

See  Heart  of  Mid-Lothian.  Presbyterians  hold  that  the  General 
Assembly  represent  the  Head  of  the  Church,  and  have  the  sole  and  exclu- 
sive right  of  regulating  whatever  belongs  to  public  worship.  There 
is  the  jus  dicinum  of  Presbytery  as  well  as  of  Episcopacy.  Independ- 
ents will  not  admit  that  any  assembly  of  churchmen  have  any  coercive 
power. 


30  HILLSBOROUGH. 

Muzzy  V.  Wilkins. 

They  were  distinct  sects  and  formed  separate  religious 
societies  at  the  time  our  Constitution  was  made.  And  I  am 
confident  if  it  had  then  been  understood  that  they  were  not 
to  be  so  considered,  no  Presbyterian  would  have  assented  to 
that  instrument.  The  Constitution,  in  using  the  words  per- 
suasion, sect,  or  denomination,  no  doubt  had  reference  to 
the  sects  at  that  time  in  being.  Episcopalians,  Baptists, 
Quakers,  were  at  that  time  exempt.  I  do  not  know  that 
the  question  at  that  time  had  arisen  respecting  Presbj'teri- 
ans.  (a)  Perhaps  it  would  be  going  too  far  to  say  that  these 
words  shall  not  be  construed  to  extend  to  sects  that  may 
spring  up  in  future.  When  they  arise  and  become  dis- 
tinctly marked,  they  will  doubtless  be  entitled  to  claim  the 
privilege  of  exemption. 

From  the  construction  now  given  to  the  Constitution,  I 
apprehend  that  it  will  follow  that  towns  and  parishes  are 
authorized  to  tax  atheists,  deists,  revilers  and  contemners 
of  religion,  and  persons  of  no  religion  at  all,  and  who  con- 
sequently belong  to  no  particular  denomination  of  Christians. 
It  is  only  persons  of  a  religious  sect  that  are  under  any 
circumstances  exempt  from  taxation  in  the  corporate  body 
to  which  they  belong.  And  in  this  case  the  public  are 
supposed  to  suffer  no  loss  from  the  exemption,  because  such 
persons  maintain  religious  instruction  according  to  their  own 
persuasion  ;  but  this  will  not  apply  to  those  who  have  no 
religion.  (6) 

VI.  It  has  been  said  that  Presbyterians  and  Congrega- 
tionalists    agree    in    many   things ;    that    they   differ   only  in 

(a)  It  has  since  arisen  in  the  case  Steele  v.  The  Assessors  of  Hillsborough, 
and  it  was  then  the  unanimous  opinion  of  the  Court,  in  their  direction  to 
the  jury,  that  Presbyterians  were  a  different  sect  from  Congregationalists. 

The  jury  found  for  the  defendants;  it  is  presumed  on  the  ground  that 
Steele  was  not  a  real  Presbyterian,  but  a  pretended  one  ;  such  was  the 
weight  of  evidence. 

(6)  In  Enghind  the  penal  laws  are  in  force  as  it  respects  persons  of  no 
religion.  The  toleration  only  extends  to  such  serious,  sober-minded  dis- 
senters as  shall  have  taken  the  oaths  and  subscribed  the  declaration  re- 
quired, and  wiio  shall  regularly  repair  to  some  registered  place  of  public 
worship.     Blackst.  Appendix ;  Answer  to  Priestley,  40. 


MAY   TERM,  1803.  31 

Muzzy  V.  Wilkins. 

trifling  matters ;  and  that  they  often  unite  in  worship  and 
communion,  (a) 

It  is  true  they  agree  in  many  things.  So  do  all  sects. 
It  is  sufficient  that  they  differ  in  such  matters  as  are  deemed 
by  themselves  essential.  It  is  sufficient  that  many  serious 
Christians  of  both  these  denominations  cannot  overcome  their 
scruples  ;  cannot  give  up  their  preference  for  the  order, 
discipline,  worship,  and  government  of  the  church,  which 
prevails  in  their  own  sect,  and  constitutes  its  difference  from 
all  others. 

Dissenters  in  England  (6)  are  allowed  to  say  that  they 
cannot  in  conscience  join  the  Established  Church ;  that  they 
cannot  take  the  sacrament  according  to  her  rites  and  cere- 
monies. The  substance  of  the  thing  is  the  same  among  all 
Protestants.  Our  Constitution  allows  all  sects  to  say  the 
same  of  each  other.  Where  the  denomination  is  different, 
and  they  do  not  in  fact  unite,  they  shall  not  be  compelled 
to  pay.  Each  sect  has  a  right  to  prefer  its  own  form,  and 
each  individual  of  the  sect  to  appropriate  his  money  to  the 
support  of  public  instruction  in  religion  and  morality  in  his 
own  society.  It  must  not  be  permitted  to  the  prevailing 
sect  to  say,  "  Those  who  differ  from  us  do  it  upon  matters 
of  indifference,  or  for  no  reasons."     The  majority  have   no 

(a)  Dr.  Tucker  (remarks  on  Parsons's  Sermons,  8)  says  Presbyterians 
and  Congregationalists  differ  but  in  smaller  matters,  in  which  they  can 
bear  with  each  other,  and  often  do,  peaceably  uniting  in  the  same  reli- 
gious society. 

See  also  New  York  Review,  V.,  90;  McCrie's  Life  of  Knox,  124. 

The  more  sober  and  learned  Puritans  inclined  to  that  form  which  is 
known  by  the  name  of  Presbyterian,  &c.  Robertson,  History  of  America, 
144. 

First  settlers  of  New  England  not  Brownists  :  id. ;  though  agreeing  in 
many  things,  Brown  went  further  and  was  out  of  credit  in  1630;  though 
Robertson  seems  to  consider  them  as  Brownists,  153,  189.  If  Brownists, 
it  was  in  a  milder  form.  The  settlers  at  Plymouth  and  Boston  were  evi- 
dently diiferent,  though  both  had  imbibed  Puritanical  notions.  Robertson 
says  they  were  Puritans  of  the  strictest  form,  158.  Some  of  the  num- 
ber retained  a  veneration  for  the  ritual  of  the  church.     Id.  159. 

(6)  Lord  Mansfield,  Blackst.  Appendix,  150. 


32  HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


right  to  judge  in  this  matter.  It  is  no  matter  whether  the 
points  in  difference  between  sects  be  great  or  small,  as  long 
as  the  parties  concerned  think  them  of  suflBcient  consequence 
to  induce  a  separation,  (a)  All  the  Protestant  churches  set 
out  together,  but  they  parted  on  the  road.  They  fell  out 
by  the  way.  And  yet,  if  we  coolly  and  impartially  examine 
the  points  on  which  they  differed  and  separated,  they  will 
be  found  few  in  number  and  trifling  in  amount. 

It  is  true  Presbyterians  and  Congregationalists  (i)  have 
been  for  some  time  approximating  towards  each  other,  but 
they  have  not  yet  formally  united.  Both  sects  have  increased 
in  Catholicism,  all  sects  are  approximating,  the  shades  of 
difference  have  been  for  some  time  gradually  wearing  away, 
and  a  more  liberal  way  of  thinking  generally  prevails.  (<?) 
There  have  been  times  when  toleration  was  reckoned  among 
the  number  of  the  deadly  or  mortal  sins,  {d}     He  who  be- 

(a)  Who  has  not  seen  Congregationalists  commune  with  Presbyterians; 
and,  instead  of  sitting  at  a  table  in  the  true  Presbyterian  mode,  take  the 
elements  in  a  pew?  This  is  said  to  be  the  case  with  Mr.  Adams,  at  Dr. 
Green's,  Philadelphia.  In  Pembroke,  the  same  minister  governs  one  part 
of  his  society  in  the  Presbyterian,  and  the  other  in  the  Congregational, 
mode. 

Presbyterians  in  Scotland  make  no  scruple  in  communicating  with  the 
Church  of  England.     3  Senator,  141. 

(b)  Presbyterians  and  Congregationalists  considered  as  distinct  sects  at 
early  times  in  New  England.  Connecticut,  1(580.  Mass.  Ilist.  Coll.  IV. 
2"J2.  Mass.  Hist.  Coll.  IX.  47.  Presbyterians  not  allowed  even  to  hold 
lands. 

There  has  been  a  time  when  members  of  the  Church  of  Scotland  have 
been  refused  communion  in  the  New  England  churches.  Mass.  Hist.  Coll. 
IX.  47. 

An  attempt  was  made,  in  1G43,  to  establish  Presbyterian  government 
at  Boston,  under  the  authority  of  the  assembly  of  divines  at  Westminster, 
but  it  was  baffled  by  the  General  Court.  1  Holmes,  American  Annals, 
328;  1  Hutchinson,  112.  See  1  Holmes,  American  Annals,  409.  J2pi8- 
copal  worship  against  the  conscience  of  Congregationalists  in  their 
meeting-houses.  See  2  Holmes,  American  Annals,  486.  Congregational- 
ists inimical  to  Presbyterian  government.     Winthrop's  Journal,  57. 

(c)  "  The  bitterness  of  sectaries  against  sectaries  exceeds  all  common 
wrath." 

(d)  19  Quarterly  Review,  92-97.      Toleration  is  a  new  virtue  in  any 


MAY   TERM,  1803.  33 

Muzzy  i;.  Wilkins. 

lieved  that  he  had  the  command  of  God  to  extirpate  heresy 
would  not  suffer  the  execution  of  the  divine  will  to  be 
retarded  by  the  weakness  of  humanity.  But  the  laws  of 
humanity  at  length  triumphed,  and  toleration  came  to  be 
considered  as  a  duty.  With  us  it  is  exploded,  for  it  implies 
an  establishment  which  we  have  not.  Here  the  doctrine 
of  toleration  has  given  place  to  the  most  perfect  equality  of 
rights.  If  this  system  of  ours  is  suffered  to  remain  for  any 
length  of  time,  I  should  hope  that  discordant  sects  may  in 
time  be  brought  to  assimilate,  and  then  to  unite,  (a) 

Our  Constitution  has  a  tendency  to  produce  these  effects, 
as  far  as  human  means  can  accomplish  it.  Force,  however 
gentle,  has  no  tendency  to  unite.  (6)  It  will  produce  a 
contrary  effect.  It  is  of  the  nature  of  the  human  mind  to 
revolt  at  compulsion.  Men  have  in  all  ages  suffered  martyr- 
dom for  what  appear  to  be  the  merest  trifles.  It  is  the 
usual  effect  of  persecution  (and  though  the  present  question 
does  not  involve  the  rights  of  conscience,  yet  many  suppose 
they  are  involved),  it  is  the  usual  effect  of  what  is  deemed 
persecution,  and  every  species  of  oppression,  to  harden  and 
contract  the  will,  (c)  to  inflate  and  inflame  the  imagination, 

country;  5  Burke,  154.  Toleration  is  odious  to  the  intolerant;  freedom 
to  oppressors;  property  to  robbers;  and  all  kinds  and  degrees  of  prosperity 
to  the  envious.     Burke;   1  Brit.  Cicero,  158,  159. 

Toleration.     2  Brit.  Cicero,  67,  &c. 

(a)  If  they  should  never  unite,  they  may  perhaps  be  as  useful  apart. 
See  21  Edinburgh  Review,  181. 

(6)   See  3  Shaft.  88  ;  4  Burke,  113;  1  Haz.  Eloq.  Brit.  Sen.  406. 

(c)  It  was  enacted  bylaw,  in  France,  that,  if  any  Jew  embraced  Chris- 
tianity, he  forfeited  all  his  goods.  I  am  inclined  to  think  that  such  a  law 
•would  be  more  likely  to  make  converts  to  Christianity  than  a  law  declar- 
ing that  all  who  remained  Jews  should  incur  the  same  forfeiture.  2 
Hume's  England,  227,  237.     1  Haz.  Eloq.  Brit.  Sen.  406. 

The  diseases  of  the  body  may  be  sometimes  cured  by  salutary  violence, 
but  neither  steel  nor  fire  can  eradicate  the  erroneous  opinions  of  the  mind. 
The  reluctant  victim  may  be  dragged  to  the  foot  of  the  altar,  but  the 
heart  still  abhors  and  disclaims  the  sacrilegious  act  of  the  hand.  Religious 
obstinacy  is  hardened  and  exasperated  by  oppression.  2  Gibb.  308.  See 
19  Edinburgh  Review,  155,  160. 

Louis  XIV.,  finding  his  persecution  of  the  Protestants  ineffectual,  de- 

8 


34  HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


to  magnify  trifles  into  matters  of  importance.  Zeal  becomes 
ardent,  then  rancorous.  When  the  current  of  zeal  and 
devotion  is  contracted  into  a  narrow  channel,  it  runs  with 
the  strength,  and  sometimes  with  the  fury,  of  a  torrent.  It 
provokes  persecution,  and  the  furious  zealot  expires  in  the 
flame  his  own  zeal  has  kindled.  But  from  the  ashes  of  every 
martyr,  —  whether  a  victim  to  the  truth  or  to  error,  whether 
to  great  or  to  small  things,  —  spring  up  a  thousand  ready  to 
encounter  the  pains  for  the  crown  of  martyrdom.  Policy, 
therefore  (though,  as  a  judge,  I  disclaim  being  influenced  by 
it),  policy  dictates  that  we  should  not  hurry  the  good  work 
of  Catholicism  and  union  of  sects.  This  zeal  too  much  re- 
sembles the  profane  and  impious  zeal  of  the  Hebrew  priest, 
who  must  needs  put  forth  his  hand  to  guide  the  ark.  The 
greatest  bigot  I  ever  knew,  w^as  a  bigot  to  freedom  of  inquiry,  — 
illiberal  in  favor  of  liberality,  and  uncatholic  towards  all  who 
were  not  as  catholic  as  himself. 

In  this  country  there  is  perhaps  less  difference  in  the  actual 
government  and  discipline  of  the  Presbyterian  and  Congre- 
gational Churches,  than  what  appears  in  their  platforms. 
Still,  there  is  a  difference  in  practice.  In  judging  of  the  sects, 
we  are  not  to  compare  the  lax  administration  of  the  systems, 
but  the  systems  themselves.  This  would  be  like  judging  of 
a  w^ork  by  a  spurious  impression,  one  which  the  author  him- 
self disavows ;  like  judging  of  an  original  by  a  bad  copy.  It 
is  the  same  error  which  infidels  have  fallen  into,  —  ascribing 
to  the  Christian  system  the  faults  of  its  unworthy  pro- 
fessors, (a)     Mild  as  the  present  times  are,  liberal  as  I  know 

sired  Fen61on  to  try  if  he  could  not  convert  them  with  his  preaching. 
"That  I  will,  with  all  my  heart,  Sire,"  replied  the  Archbishop,  "if  you 
will  be  so  good  as  to  call  off  your  dragoons,  for  'tis  they  that  drive  them  so 
much  farther  from  us."     Spence's  Anecdotes,  29. 

(a)  The  question  is  not  what  some  persons  calling  themselves  Presby- 
terians think  and  do,  but  what  the  great  body  of  religious  men,  who  con- 
scientiously adopt  and  adhere  to  this  sect,  and  firmly  believe  in  the  great 
importance  of  the  points  in  which  this  sect  of  their  choice  differs  from  all 
others,  think  and  do.     See  32  Edinburgh  Review,  108. 

There  are  catholic,  liberal-minded  Presbyterians,  and  there  are  Pres- 
byterians who  care  as  little  about  religion  as  about  the  difference  of  sects. 


MAY   TERM,  1803.  36 

Muzzy  V.  Wilkins. 

Mr.  Barnard  and  the  respectable  members  of  his  society  are, 
still  I  believe  they  have  no  fancy  to  go  over  to  the  plaintiff's 
sect.  They  prefer  their  own.  They  think  it  most  agreeable 
to  Scripture.  They  are  willing  the  plaintiff  should  come  to 
them,  but  do  not  choose  to  go  to  him.  But,  if  he  is  really 
and  truly  a  Presbyterian,  he  has  a  right  to  remain  where 
he  is,  and  to  enjoy  his  own  peculiarities  while  they  enjoy 
theirs,  (a) 

VII.  To  recapitulate. 

The  Constitution  secures  the  citizens  of  this  State  against 
persecution  on  account  of  their  religious  opinions  and  re- 
ligious worship. 

It  provides  that  religious  opinions  shall  in  no  case  form  any 
ground  of  civil  distinction,  declaring  that  all  men  are  equal 
in  the  sight  of  the  law,  and  equally  eligible  to  civil  honors 
and  offices. 

It  provides  for  public  instruction  in  religion  and  morality, 
because  they  promote  the  good  of  society ;  and  declares  that 
it  can  only  be  maintained  by  authorizing  towns,  in  their 
corporate  capacity,  to  support  and  maintain  it. 

It  exempts  persons  who  are  really  and  truly  of  a  different 
denomination  from  the  majority  of  the  corporation  from  pay- 
ing towards  the  support  of  the  teacher  elected  by  the  cor- 
porate body.  It  leaves  them  at  liberty  to  apply  their  means 
towards  the  support  of  public  instruction  in  religion  and 
morality  according  to  their  own  persuasion,  which  is  supposed 
to  be  equally  useful  to  society. 

From  the  pleadings'  in  this  cause  it  appears  that  the  plaintiff 
is  a  Presbyterian,  and  the  First  Parish  in  Amherst,  Congre- 
gationalist. 

(a)  McCrie's  Life  of  Knox,  124..     See  3  Brit.  Cicero,  424. 

One  man  has  no  right  to  touch  the  religious  prejudices  of  another.  27 
Edinburgh  Review,  337. 

The  Presbyterian,  in  his  tenets,  differs  slightly  from  the  Church  of  Eng- 
land ;  the  Roman  Catholic  differs  greatly.  But  to  the  conscientious  be- 
liever in  the  superior  purity  of  his  own  persuasion,  the  smaller  step  (to 
coalesce)  is  not  less  impossible  than  the  greater,  &c.  61  Edinburgh 
Review,  262. 


36  HILLSBOROUGH. 


Muzzy  17.  Wilkins. 


These  are  different  sects,  because  they  differ  in  church 
government  and  discipline,  though  they  agree  in  doctrines. 

The  consequence  of  all  which  is,  that  — 

The  demurrer  must  he  overruled^  and  the  plaintiff  must  have 
judgment  on  the  second  count  (a).^ 

Judge  LiVERMORE,  of  that  opinion. 

Judge  WiNGATE,  of  a  different  opinion. 

Judge  Atkinson,  not  present. 

Judge  Farrar,  who  heard  the  arguments,  fully  agreed 
with  the  majority  of  the  Court,  but  had  resigned  his  seat 
before  judgment  was  given. 

(a)  See,  as  to  religious  establishment,  toleration,  persecution,  17 
'Edinburgh  Review,  6.     See  also  19  Edinburgh  Review,  149-164. 

Note.     Origin  of  Dissenters,  15  Swift's  Works,  18mo  ed.  132. 

Mr.  Hollis  (donor  of  Harvard  College)  appears  to  have  considered  Pres- 
byterians and  Congregationalists  different  sects.  See  1  Art.  Morse,  10.  So 
the  College  considers  them:  Presbyterian  ministers  are  not  overseers. 

Establishments  in  religion;  5  Senator,  742.  Toleration,  1  Belknap,  82. 
See  Methodists,  2  Wendeborn's  View  of  England,  &c.,  229,  233,  258, 
2G0-203. 

Origin  of  Presbyterianism,  1  Hooker,  Eccl.  Pol.  135,  ante  et  post,  and 
141. 

There  will  be  a  time  when  three  words  uttered  with  charity  and  meek- 
ness shall  receive  a  far  more  blessed  reward  than  three  thousand  volumes 
written  with  disdainful  sharpness  of  wit  (i.e.,  in  different  spirit  from  that 
of  meekness  and  charity).     1  Hooker,  Eccl.  Pol.  142. 

In  New  England  the  doctrines  of  Westminster  Confession  of  Faith 
always  regarded  highly,  but  the  divine  right  of  Presbyterian  government 
with  greater  unanimity.  2  (Sav.)  Wiuthrop,  77,  n.  (1).  See  Id.  91, 
fear  of  Presbyterianism.  See  Id.  137,  "  Mr.  H.,  being  of  a  Presbyterial 
spirit,  did  manage  all  affairs  without  the  church's  advice,  &c."  Win- 
throp,  II.,  235-249,  330,  n.,  331. 

Wise,  19.  The  ref.  [reformation  ?  ]  in  King  P^dward's  time  good  ; 
of  (Jeneva  and  Scotland,  better.  But  the  Congregational  way  far  ex- 
ceeds them  all  in   purity,  is  the  highest  step" towards  reformation,  and 


1  In  Henderson  et  at.  v.  Erskine,  defendant  in  error,  Cheshire,  Octo- 
ber Term,  1802,  3  Manuscript  Reports,  33  (also  cited  in  Universalist 
Quarterly  for  April,  1876,  154-160,  and  for  July,  1876,  161-163),  Caleb 
Ellis,   counsel  for   Erskine,  proposed  to  argue  that  "  Uuiversalists  and 


MAY   TERM,  1803.  37 

Muzzy  V.  Wilkins. 

for  the  substance,  is  the  same  that  was  established  and  practised  in  primi- 
tive times,  according  to  the  institution  of  Jesus  Christ.  President  Coke's  [  ?] 
Sermon. 

Wise,  104.  Difference  between  Congregationalism  and  Presbyterianism. 
Id.  172.     Mass.  Hist.  Coll.  IX.  48. 

[Notes  have  been  omitted  which  contain  references  to  the  following  :  — 
2  Aiken's  Eliz.  95;  1  Millar's  Account  of  Presb.  and  Indep.  130;  2 
Hooker,  Eccl.  Pol.  268 ;  Library  Useful  Knowledge,  No.  199,  3G ;  1  Aiken's 
James  I.  57;  Eliz.  189;  Mackintosh's  Rev.  1688,  285,  286,  &c.  IX. 
Lingard,  10,  &c.] 

Congregationalists  are  different  persuasions,  sects,  or  denominations." 
"  But,  being  informed  that  the  Court  had,  upon  full  consideration, 
decided  this  point  against  him,  he  waived  it,"  and  argued  another 
point.  The  action  was  brought  to  try  the  validity  of  a  tax  assessed  on 
Erskine,  a  Universalist,  for  the  salary  of  a  Congregational  minister.  The 
decision  of  the  Court  of  Common  Pleas,  at  April  Term,  1801,  in  favor  of 
Erskine,  was  reversed  in  the  Superior  Court,  at  October  Term,  1802,  by 
Fakrar  and  Livkrmore,  JJ.  Wikgate,  J.,  was  absent;  and  Smith, 
C.  J.,  did  not  concur,  because  he  doubted  whether  the  plaintiffs  in  error 
had  taken  their  objections  in  the  proper  form.  The  previous  decision, 
referred  to  by  the  Court  in  Henderson  v.  Erskine,  was  undoubtedly  made 
before  the  appointment  of  Judge  Smith.  This  appears  from  the  following 
certificate  by  his  predecessor.  Chief  Justice  Olcott,  which  is  among  the 
papers  in  Henderson  v.  Erskine  (and  evidently  refers  to  a  prior  case). 

"  I  certify  that  it  has  been  settled  by  the  Superior  Court,  that  persons 
called  Universalists  are  not  such  a  sect,  persuasion,  or  denomination  as 
by  the  Constitution  of  New  Hampshire  are  exempt  from  the  payment  of 
taxes  for  the  support  of  a  regularly  settled  minister  of  a  Congregational 
Society  in  the  town  where  such  persons  live.  And  I  think  that,  in  estab- 
lishing  this   practice,    the   Court  were   unanimous. 

April  y' 3d,  1801.  Simeon  Olcott." 

"  Those  decisions  were  manifestly  wrong  in  this  :  they  were  based 
solely  on  the  indisputable  proposition  that  Universalists  are  Congregation- 
alists, in  disregard  of  the  two  other  propositions,  equally  indisputable  and 
equally  important,  that  Universalists  are  one  of  several  Congregational 
sects,  and  that  religious  liberty  is  the  object  of  the  constitutional  provision. 
In  1804  the  Freewill  Baptists,  in  1805  the  Universalists,  and  in  1807  the 
Methodists,  applied  to  the  Legislature  for  relief  from  the  tax-paying 
consequences  of  being  held  not  to  be  religious  sects  distinct  from  the 
Puritans,  and  procured  the  passage  of  resolutions  declaring  them  to  be 
religious  sects  entitled  to  the  constitutional  privilege.  Whether  they  were 
religious  sects  within  the  meaning  of  the  Constitution,  or  not,  was  a 
judicial  and  not  a  legislative  question ;  but,  by  the  unconstitutional  and 
void  resolutions  of   the  Legislature,  the  erroneous  decisions  of  courts, 


HILLSBOROUGH. 


Muzzy  V.  Wilkins. 


juries,  towns,  and  town  officers,  were  practically  reversed."     Doe,  J.,  in 
Hale  V.  Everett,  1868,  53  N.  H.  9,  138. 

The  power  given  to  towns,  by  the  act  of  Feb.  8,  1791,  to  raise  money 
by  taxation  for  the  support  of  the  ministry,  was  taken  away  by  the 
so-called  "  Toleration  Act  "  of  1819  (Laws  of  1819,  c.  76),  excepting  so 
far  as  was  necessary  for  the  fulfilment  of  contracts  then  existing.  As  to 
the  pas.sage  of  the  "Toleration  Act,"  see  reporter's  note  in  55  N.  H. 
468,  469.  Besides  the  references  there  given,  see,  generally,  as  to  taxation 
for  the  support  of  the  ministry,  Life  of  William  Plumcr,  185-187  ;  Life  of 
Isaac  Hill,  44,  52;  Sanborn's  History  of  New  Hampshire,  c.  79; 
DoK,  J.,  in  Ilale  v.  Everett,  ubi  sup.  148,  149. 

In  The  DnUin  Case,  18.39,  38  N.  H.  459,  it  was  decided  that  the  terra, 
"minister  of  the  Congregational  persuasion,"  as  used  in  a  will  made  in 
1817,  was  broad  enough  to  include  a  Unitarian  minister. 

The  Constitution  of  Massachusetts  provided  that  all  taxes  paid  by  any 
person  for  religious  teaching  shall,  if  he  require  it,  be  applied  to  the 
support  of  the  public  teacher  "  of  his  own  religious  sector  denomination," 
if  "  there  be  any  one  whose  instructions  he  attends." 

Under  this  clause  it  was  decided  that  Universalists  were  a  different 
denomination  from  Congregationalists.  Murray  v.  Inhabitants  of  First 
Parish  in  Gloucester,  Supreme  Court,  Essex  County,  June,  1786;  2  Dane, 
Abr.  330.  And  Presbyterians  were  held  to  be  a  different  sect  from 
Congregationalists.  Annan  v.  Inhabitants  of  West  Parish  in  Salisbury, 
Supreme  Court,  Essex  County,  1796;  2  Dane,  Abr.  335. 

In  Holbronk  v.  Holbrook,  1822,  1  Pick.  248,  256,  Parkeh,  C.  J.,  said, 
"Having  no  reports  of  judicial  decisions  prior  to  the  year  1804,  we  have 
lost  an  important  part  oi  our  history  in  relation  to  the  construction  of  the 
Constitution  and  the  Declaration  of  Rights;  but  we  have  a  traditionary 
account  that  it  was  early  decided  that  difference  of  denomination,  as  the 
term  is  used  in  the  Declaration,  consists  in  a  difference  of  church  disci- 
pline and  mode  of  administering  some  of  the  Christian  ordinances;  not  in 
difference  of  opinion  on  doctrines  of  theology.  Episcopalians,  Congrega- 
tionalists, Presbyterians,  Baptists,  and  others  were  each  of  different 
denominations;  but  Christians  belonging  to  either  of  those'sects  were  of 
the  same  denomination,  however  widely  they  might  differ  as  to  the  essen- 
tial or  non-essential  matters  of  faith  or  doctrine." 


MAY   TERM,  1803. 


Henry  v.  Arms. 


CHESHIRE,   MAY  TERM,   1803. 


Susanna  Henry  v.  Jonathan  Arms. 

An  heir  cannot  maintain  an  action,  in  a  common-law  court,  against  an  admin- 
istrator, to  recover  her  share  of  property  belonging  to  the  intestate,  which 
the  administrator  improperly  omitted  to  account  for  on  his  settlement  in  the 
Probate  Court. 

H.  contracted  to  purchase  land  of  A.,  and  gave  him  notes  for  the  price.  II.  died. 
A.  was  appointed  administrator  of  his  estate,  which  was  settled  in  tlie  insol- 
vent course.  A.  exhibited  his  notes  as  claims,  which  were  allowed,  and  a 
dividend  of  eighty  per  cent  was  paid  to  him.  A.  settled  liis  account  witliout 
accounting  for  the  land,  which  he  subsequently  sold  for  liis  own  benefit. 

Held,  that  an  heir  of  H.  could  not  maintain  assumpsit,  for  money  had  and  received, 
against  A.,  for  her  share  of  the  proceeds  of  the  land. 

This  was  an  action  to  recover  $80,  liad  and  received  by  the 
defendant  to  the  plaintiff's  use. 

The  general  issue  was  pleaded. 

The  case,  as  stated  by  the  counsel  for  the  plaintiff,  was 
that,  on  May  5,  1795,  one  Robert  Henry  and  the  defendant 
Arms  entered  into  a  contract,  by  which  Arms  contracted  in 
four  years  to  convey  to  Henry  certain  lands  in  Vermont,  on 
payment  of  8516.67,  with  interest.  Henry  made  notes  to 
Arms  for  the  payment  of  this  sum  by  May  5,  1799,  with 
interest ;  and  Arms  executed  a  bond  to  Henry  for  perform- 
ance of  the  contract  on  his  part,  (a)  In  1796,  or  1797, 
Robert  Henry  died  intestate,  and  Arms  was  appointed  admin- 
istrator of  his  estate.  He  administered  in  the  insolvent 
course,  and  exhibited  to  the  commissioners  the  notes  he 
received  for  the  purchase-sum  of  the  lands  he  had  contracted 
to  sell  to  Henry,  and  the  claim  was  allowed  ;  viz.  8605.74. 

(a)  It  seems  one  Silvester  joined  with  Henry  in  the  notes,  and  was 
joined  in  the  bond  jointly  and  severally. 

April  30,  1797,  Silvester  assigned  his  interest  in  the  bond  to  Benjamin 
Page,  who  has  made  no  claim  in  consequence  of  it.  Probably  Silvester 
■was  a  mere  surety.     lie  paid  nothing,  and  is  said  to  be  insolvent. 


40  CHESHIRE. 


Henry  v.  Arms. 


The  other  claims  amounted  only  to  $21.98.  Sept.  27,  1798, 
Arms  settled  his  administration  account,  purporting  to  be  a 
complete  and  final  settlement  (at  least  not  purporting  the 
contrary).  The  balance  was  decreed  to  the  creditors;  Arms's 
dividend  was  $486.13,  or  about  eighty  per  cent  on  his  claim 
allowed. 

In  this  account  no  notice  was  taken  of  the  land  in  Ver- 
mont, and  Arms  has  in  no  way  accounted  for  it. 

Dec.  24, 1799,  Arms  conveyed  the  lands  in  Vermont  to  Rob- 
ert Henry,  son  of  the  intestate,  for  a  certain  sum  agreed  on. 

The  plaintiff  is  a  daughter  of  the  intestate,  Robert  Henry, 
and  an  heir  to  one-seventh  of  his  estate. 

The  counsel  for  the  plaintiff  contended  that  the  defendant 
could  not  in  conscience  retain  what  he  received  out  of  the 
estate  of  his  intestate  on  his  claim,  viz.  $486.13,  and  what  he 
received  from  Robert  Henry,  Jr.,  for  the  land  sold  him.  He  had 
a  right,  perhaps,  to  elect  to  consider  the  bargain  at  an  end  on  the 
death  of  Henry,  or  not.  Here  he  elected  to  go  on  with  it, 
and,  consequently,  was  bound  to  account  for  what  he  received 
for  the  land  when  sold.  The  legal  title  was  in  him,  but  he 
was  only  trustee  for  the  heirs  of  Henry.  It  was  their  land  in 
equity,  and,  when  sold,  the  money  was  theirs,  and  they  could 
recover  it  in  this  form  of  action.  He  might,  indeed,  retain 
enough  to  pay  twenty  per  cent  on  the  pound  on  the  claims,  — 
his  own  as  well  as  the  rest,  —  and  his  expenses  in  selling,  but 
no  more. 

But  THE  Court  were  clear  that  this  action  was  not  maintain- 
able, though  the  case  stated  appeared  to  be  a  meritorious  one. 

What  is  the  present  case  ?  An  heir  of  an  estate  adminis- 
tered in  the  insolvent  course,  and  found  to  be  insolvent  by  the 
proceedings  in  the  Probate  Court,  (a)  seeks  to  recover  from 
the  administrator  a  certain  sum,  i.  e.  her  part  of  the  balance 

(a)  And  the  case  will  not  be  varied  if  we  consider  the  defendant,  not  as 
administrator,  but  a  trustee,  or  a  person  bound  by  contract  with  the  intes- 
tate to  account  with  him,  or  his  heirs  or  personal  representatives,  for  the 
value  of  certain  lands,  or  to  convey  those  lauds. 


MAY   TERM,  1803.  41 

Henry  v.  Arms. 

that  would  remain  if  the  administrator  had  faithfully  admin- 
istered and  had  accounted,  as  he  was  bound  to  do,  for  cer- 
tain property  he  held  as  trustee  for  the  intestate. 

When  Arras  became  administrator,  he  in  that  capacity 
became  interested  in  the  contract  which  has  been  stated. 
As  a  private  individual  or  creditor,  he  had  a  right  to  enforce 
payment  or  performance  on  Plenry's  part;  and  as  administra- 
tor was  bound  to  pay  ;  this  being  done,  it  immediately  be- 
came his  duty  as  administrator  to  do  what  any  other  person 
acting  as  administrator  ought  to  have  done,  namely,  convert 
the  land  into  money,  and  satisfy  the  claims  on  the  estate,  and 
all  charges,  and  pay  over  the  residue  to  the  heirs  at  law.  He 
held  this  land  as  trustee  ;  but  it  was  a  trust  coupled  with  the 
office  of  administrator.  He  stood  in  the  same  situation  as 
any  other  administrator  would  have  done,  if  conveyance  of 
the  land  had  been  made  to  him  in  that  capacity.  He  was 
under  the  same  obligation,  and  no  greater,  to  realize  the  value 
of  this  land,  as  a  stranger,  if  appointed  administrator,  would 
have  been,  to  realize  the  value  of  the  contract  or  the  intestate's 
interest  in  it.  He  could  not,  as  administrator,  sue  upon  the 
contract,  but  his  obligations  and  duties  are  the  same  as  if  he 
had  realized  the  full  effect  of  a  suit,  i.  e.  acquired  a  title  to 
the  land  for  the  purpose  of  administering  on  it. 

No  suit  can  be  maintained  against  the  administrator  of  an 
insolvent  estate  by  an  heir,  for  the  best  of  all  reasons,  namely, 
because  there  is  no  estate  for  the  heirs,  it  having  been  ascer- 
tained, by  a  court  of  competent  authority,  that  there  is  not 
enough  to  satisfy  the  creditors  whose  claims  are  liquidated. 

No  action  can  be  maintained  by  an  heir  against  the  admin- 
istrator of  an  estate  administered  in  the  solvent  or  insolvent 
course,  till  theie  is  a  decree  in  his  favor  in  the  Probate 
Court. 

The  ground  of  both  these  principles  of  law  is  the  same, 
namely,  that  the  settlement  of  all  estates  of  persons  deceased 
intestate  exclusively  belongs  to  the  Probate  Court.  No  other 
court  is  competent  to  make  such  settlement,  and  to  determine 
what  belongs  to  the  heirs.  Before  this  can  be  done,  the 
charges  of  administration  must  be  liquidated,    the  claims  of 


42  CHESHIRE. 


Henry  v.  Arms. 


creditors  adjusted,  and  the  estate  of  the  deceased  ascertained. 
It  is  saying  nothing  in  dispraise  of  courts  of  common  law  to 
say  that  tliey  are  altogether  incompetent  to  tlie  task.  If  they 
were  [to  make  the  attempt],  it  would  lead  to  endless  litigation. 
Every  creditor  and  every  heir  would  be  under  the  necessity  of 
travelling  over  the  whole  ground.  There  might  in  many  cases 
be  five  hundred  verdicts  upon  as  many  different  principles. 

When  the  proceedings  of  a  probate  court  are  produced  in  a 
court  of  common  law,  they  are  to  be  received  as  just  and  true, 
and  cannot  be  impeached.  The  reasons  are  obvious.  If 
courts  of  common  law  are  incompetent  to  do  the  business  of  the 
probate  courts,  they  must  be  equally  incompetent  to  re-exam- 
ine, revise,  and  correct  them.  From  the  nature  of  the  thing  it 
is  evident  that  the  decrees  of  the  Probate  Court  must  be  con- 
clusive to  everybody  as  to  every  part. 

Here  the  plaintiff  not  only  can  produce  no  decree  or  pro- 
ceedings of  the  Probate  Court  on  which  to  found  her  right  of 
action,  but  there  is  a  decree  against  her.  By  these  proceedings 
it  appears  that  the  estate  of  Robert  Henry,  the  intestate,  is 
really  insolvent.  If  tliis  suit  is  to  recover  back  a  seventh  of 
the  $486.13  adjudged  to  Arms  as  his  proportion  or  dividend,  a 
recovery  in  this  action  falsifies  that  adjudication,  (a) 

It  may  be  said  that  this  action  is  maintainable  on  the  same 
ground  on  which  Moses  v.  Macfarlane,  2  Burr.  1005,  was 
supported.  Evans,  91 ;  2  H.  Bl.  402  ;  7  T.  R.  269.  The  au- 
thority of  that  celebrated  case  is  shaken,  if  not  overturned,  by 
later  decisions.  But,  supposing  it  to  be  good  law,  it  by  no 
means  goes  the  length  of  supporting  the  present  action.  The 
ground  of  the  decision  there  was  that  Moses  could  not  go  into 
his  defence  in  the  court  of  conscience.  If  he  could  have  so 
done,  he  would  not  have  been  allowed  to  recover  back  money 
on  ground  which  he  might  have  taken  to  prevent  the  recovery. 

But  here  there  is  no  color  for  saying  that  the  heirs  of  Henry 
could  not  have  resisted  this  claim  before  the  commissioners,  or 
in  a  court  of  law,  if  unjust,  or  have  compelled  Arms  to  have 
accounted  for  the  present  value  of  the  land  in  Vermont.     It 

(a)  On  the  merits,  there  seems  no  reason  for  recovering  back  any  part 
of  Arms's  dividend.    Defendant  has  a  legal  and  equitable  right  to  retain  it. 


MAY   TERM,  1803.  48 


Henry  v.  Arms. 


may  be  said  they  had  no  notice.  They  might  have  filed  a 
caveat.  Besides,  it  is  sufficient  for  us  that  the  law  has  made 
provision  that  notice  should  be  given,  and  we  must  take  it  for 
granted  that  the  law  has  been  complied  with.^  If  no  notice 
in  fact  were  given,  perhaps  the  decree  may  be  opened  in  the 
Probate  Court,  and  revised. 

If  this  suit  is  to  recover  a  seventh  part  of  the  money  received 
by  Arms  for  the  land  in  Vermont,  it  is  not  maintainable, 
because  it  in  that  case  falsifies  the  proceedings  in  the  Probate 
Court ;  it  shows  that  there  was  more  estate  of  the  deceased 
than  what  was  accounted  for.  (a)  But  if  it  does  not  falsify  the 
administration  account  already  settled,  yet  it  goes  upon  the 
ground  that  the  settlement  was  not  complete,  and  it  is  in 
effect  making  the  administrator  account  for  part  of  the  de- 
ceased's estate  in  a  court  of  common  law.  (6)  If  we  view 
Arms  as  administrator,  then  the  proceeds  of  the  Vermont 
lands  are  assets,  and  to  be  administered  as  such,  —  that  is  to 
say,  to  pay  creditors  in  full,  then  to  heirs,  —  and  the  adminis- 
trator is  only  answerable  in  the  Probate  Court,  at  least  so  far 
as  goes  to  liquidating  claims  of  those  entitled  as  heirs. 

But  if  we  consider  the  defendant  not  as  administrator,  but 
as  a  trustee,  in  this  case  the  heirs  must  look  to  him  through 
the  administrator.  Heirs  cannot  maintain  a  personal  action 
except  in  the  name  of  the  personal  representative,  (c) 

(a)  As  it  respects  heirs,  courts  of  common  law  can  take  no  notice  of 
personal  estate  not  found  administered  upon  in  the  Probate  Court.  The 
administrator  is  bound  to  account  for  all  the  personal  estate.  When  he  has 
accounted,  courts  of  law  must  presume  that  he  has  accounted  for  the  whole. 

(h)  And  here,  doubtless,  is  a  remedy  in  the  Probate  Court,  calling  on 
Arms  to  account  for  the  proceeds  of  sale.  If  he  refuse,  his  bond  is  for- 
feited.    If  he  account,  and  refuse  to  pay  over,  his  bond  is  forfeited. 

(c)  Heirs  cannot  sue  a  debtor  of  the  estate.  They  must  look  to  the 
administrator,  and  he  to  the  debtor;  and,  if  he  neglect  his  duty,  he  is 
chargeable  for  waste.  Here  Arms  was  answerable  as  administrator,  in  his 
administration  account,  for  whatever  he  was  indebted  to  the  deceased,  or 
for  whatever  he  held  in  trust  for  the  deceased,  or  for  whatever  property  he 
received  as  administrator  or  held  in  that  character  for  those  interested  in 
the  estate.  He  was  bound  to  account  for  all  such  sums  as  the  administra- 
tor, if  a  different  person,  might  have  recovered  against  him. 

1  But  see  Symmes  v.  Libbey,  reported  post. 


44  CHESHIRE. 


Henry  v.  Arms. 


The  action  Caldwell  v.  Gibson,  Rockingham,  September 
Term,  1801,  3  Manuscript  Reports,  385,  was  decided  upon 
these  principles.  There  Gibson,  who  was  executor,  took  real 
estate  by  deed  expressly  to  account  with  the  heirs  of  the 
deceased.  It  was  determined  that  he  must  account  in  the 
Probate  Court,  and  was  not  liable  to  an  action  by  the 
heirs. 

The  plaintiff  became  nonsuit ;  and  the  Court  ordered  that  no 
costs  be  taxed  for  defendant  at  the  two  last  Terms.^ 

^  The  Probate  Court  alone  has  original  jurisdiction  of  the  settlement  of 
administration  accounts.  Judge  of  Probate  v.  Lane,  1871,  51  N.  H.  342, 
and  cases  there  cited,  347,  348. 

A  guardian  cannot  maintain  an  action  against  his  ward  for  money 
advanced  or  services  rendered  as  guardian,  until  he  has  settled  his 
guardianship  account  in  the  Probate  Court.  Smith  v.  Philbrick,  1821, 
2  N.  H.  395.  Nor  can  the  ward,  until  after  such  settlement,  maintain  an 
action  against  the  guardian  for  money  in  his  hands.  Critckett  v.  Hall, 
1876,  56  N.  n.  324;  and  hence  the  guardian  cannot,  until  after  settlement, 
be  charged  in  foreign  attachment  as  trustee  of  his  ward.  Davis  v.  Drew, 
1833,  6  N.  H.  399. 

Where  one  who  has  given  a  promissory  note  is  subsequently,  as  an 
insane  person,  placed  under  the  guardianship  of  the  payee,  the  latter  may, 
after  the  termination  of  the  guardianship,  maintain  an  action  on  the  note 
against  the  payor,  although  there  has  been  no  settlement  of  the  guardian- 
ship account.     Smith  v.  Davis,  1864,  45  N.  H.  566. 

The  land  of  a  ward  was  sold  by  his  guardians  under  a  supposed  license, 
and  the  purchase-money  chai-ged  to  the  guardians  in  the  settlement  of 
their  account.  The  sale  was  afterwards  vacated  by  the  ward  on  account 
of  a  defect  in  the  license,  and  the  guardians  were  compelled  to  refund  to 
the  purchaser  of  the  land.  Held,  that  the  guardians,  after  the  expiration 
of  their  trust,  might  maintain  an  action  for  money  had  and  received 
against  the  ward,  to  recover  back  the  sum  charged  them  on  the  settlement 
of  their  account.     Burleigh  v.  Bennett,  1837,  9  N.  H.  15. 

Where  one  has  been  appointed  guardian  of  a  minor  in  a  foreign  country, 
and  received  money  belonging  to  the  ward,  and  then  both  removed  to  this 
State,  the  ward,  after  she  has  become  of  age  and  the  relation  of  guardian 
and  ward  has  ceased  to  exist,  may  maintain  an  action  for  money  had  and 
received  against  the  guardian,  to  recover  the  money  in  his  hands.  Pick- 
ering V.  De  Rochemont,  1863,  45  N.  H.  67. 

If  the  estate  of  the  guardian  is  insolvent,  and  his  sureties  are  irrespon- 
sible, the  ward  may,  before  the  settlement  of  the  guardian's  account, 
bring  a  bill  in  equity  to  recover  such  part  of  the  estate  as  he  can  trace. 
Hill  V.  Mclntire,  1859,  39  N.  H.  410. 


SEPTEMBER   TERM,  1803.  45 


Carr  v.  Ladd. 


STRAFFORD,   SEPTEMBER   TERM,   1803. 


James  Carr  v.  Abigail  Ladd,  Administratrix  of  Samuel 

Ladd. 

The  estate  of  a  surety  in  a  bond  to  the  sheriff,  for  the  faithful  execution  of  office 
by  a  deputy,  remains  liable  for  defaults  of  the  principal  which  happen  after 
tlie  death  of  the  surety. 

This  was  debt  on  a  bond  made  by  Nathaniel. Ladd,  A.B., 
and  Samuel  Ladd.  The  bond  was  joint  and  several.  The 
condition  recited  that  the  plaintiff  had  appointed  Nathaniel 
Ladd,  one  of  the  obligors,  to  be  a  deputy  sheriff  under  him 
(without  any  limitation  of  time).  There  were  the  usual  stipu- 
lations :  that  he  should  faithfully  execute  the  office,  indemnify 
the  sheriff,  and  pay  over  a  certain  proportion  of  the  fees. 

Since  the  last  continuance,  the  administratrix,  Abigail 
Ladd,  died  ;  and  at  this  Term  the  administrator  de  bonis  non 
was  admitted  to  defend. 

The  defendant  was  defaulted,  and  prayed  to  be  heard  in 
chancery. 

On  the  hearing  the  plaintiff  claimed  damages  for  a  default 
of  Nathaniel  Ladd,  which  happened  after  the  death  of  Samuel 
Ladd,  the  defendant's  intestate. 

This  claim  was  resisted,  on  the  ground  that  the  estate  of 
the  intestate  was  only  liable  for  defaults  which  happened 
before  his  death. 

[Argument  for  Defendant.'] 

This  was  a  personal  engagement  on  the  part  of  Samuel 
Ladd,  which  terminated  with  his  life. 

An  administrator  is  only  bound  where  the  intestate  was 
bound.  Now  the  intestate  was  not,  and  could  not  be,  answer- 
able for  the  default  in  respect  of  which  damages  are  claimed ; 
for  he  died  before  the  default  happened. 


46  STRAFFORD. 


Carr  v.  Ladd. 


It  would  be  mischievous  to  establish  the  doctrine  that  the 
deceased's  estate  is  liable.  If  this  be  the  case,  the  sheriff  may 
charge  the  estate  to  any  extent.  The  deputy  may  be  un- 
faithful, or  misbehave  ;  the  sheriff  may  continue  him  in  office, 
and  seek  indemnity  from  the  estate.  It  has  been  usual  in  this 
State  for  the  bondsmen,  when  uneasy,  to  apply  to  the  sheriff, 
and  notify  him  that  they  will  be  responsible  no  longer,  and 
the  sheriff  either  removes  the  deputy  or  requires  new  bonds. 
If  the  deceased  could  have  demanded  this  as  a  right,  if  he 
could  have,  by  his  own  act,  put  an  end  to  his  responsibility,  it 
is  reasonable  that  his  death  should  have  this  effect. 

To  this  it  was  answered,  and  resolved  by  the  Court,  that 
this  was  not  such  an  engagement  as  must  necessarily  be  per- 
formed by  the  deceased  in  his  lifetime,  and  could  not  be  per- 
formed by  executors  or  administrators. 

This  covenant  may  be  performed  by  the  administrator  as 
well  as  by  his  principal,  (a) 

It  two  joint  lessees  covenant  jointly  and  severally,  and  one 
of  them  die,  such  covenant  will  be  binding  on  his  executors, 
notwithstanding  he  should  happen  to  die  before  the  commence- 
ment of  the  term,  and  notwithstanding  tlie  whole  interest  in 
the  lease  must,  as  being  joint,  necessarily  survive  to  his  co- 
lessee.     2  Burr.  1190,  1197  ;  2  G.  Bacon,  68. 

It  is  generally  true  that  the  administrator  is  only  liable 
where  his  intestate  was  liable.  Esp.  199 ;  Cro.  Eliz.  232. 
But  here  the  intestate  was  bound ;  and  he  could  make  a  con- 
tract which  should  eventually  charge  his  representatives, 
though  no  suit  could  have  been  maintained  against  himself. 
A  man  may  bind  himself  and  his  executors  to  pay  a  certain 
sum  in  one  year  from  his  death.  So  he  may  bind  himself  and 
his  executors  to  pay  a  certain  sum  in  one  year ;  his  death 
within  the  year  will  not  discharge  the  executors,  though  it  is 
true  that  no  action  could  liave  been  maintained  against  him, 
the  breach  not  happening  till  after  his  death. 

If  a  man  covenant  with  another,  and  die,  an  action  lies 
against   his   representative,    though    not   named,    unless    the 
(a)  1  Fonbl.  345,  n.  c;  2  G.  Bacon,  69;  Cro.  Eliz.  552,  553. 


SEPTEMBER   TERM,   1803.  47 


Carr  v.  Ladd. 


covenant  determines  by  the  death  of  the  covenantor,  i.  e.  un- 
less it  be  for  a  personal  act ;  but  an  action  does  not  lie  upon  a 
covenant  in  law,  not  broken  until  the  death  of  the  covenantor. 
Com.  Dig.  Covenant,  C.  1  ;  3  Wooddeson,  87  ;  Esp.  296. 

From  these  authorities  it  may  be  inferred  that  on  a  cove- 
nant in  a  deed  where  the  thing  to  be  done  is  not  a  personal 
act,  one  which  can  only  be  done  by  the  covenantor,  an  action 
may  be  maintained  against  the  representative  where  the  breach 
happens  after  the  death  of  the  covenantor. 

A  man  may  covenant  for  the  acts  of  another.  1  Strange, 
553  ;  Burr.  1196  ;  Esp.  296. 

The  case  o''  Reaver  v.  Thompson,  King's  Bench,  June  25, 
1803,  before  Lord  Ellenborough,  is  in  point. 

"  This  was  an  action  against  an  executor  on  a  bond  for  XlOO, 
given  as  security  for  the  honesty  of  one  Cooper,  who  was  em- 
ployed as  book-keeper  at  the  Angle  Inn,  on  the  recommenda- 
tion of  the  defendant's  testator  [James  Marsh,  who  executed 
this  bond]. 

"  lj.flr.  Erskine  stated  that  he  could  prove  defalcations  in 
Cooper's  account  to  an  amount  considerably  greater.] 

"  Mr.  Park  [on  the  other  side]  stated  that  the  defalcations 
of  Cooper  were  after  the  death  of  Marsh,  the  defendant's  tes- 
tator. He  admitted  that  the  executors  were  bound  to  answer 
any  defalcations  in  the  lifetime  of  Marsh,  but  he  thought  it 
would  be  extremely  hard  that  a  man's  family  should  be  bound 
for  an  indefinite  time  by  a  bond  given  merely  as  a  security  for 
the  honesty  of  the  person  recommended.  The  learned  counsel 
cited  some  authorities,  which  he  conceived  were  against  this 
supposition. 

"  Lord  Ellenborough  said  that,  whether  it  was  a  hardship 
or  not,  it  was  certainly  the  law,  that,  if  a  man  gave  a  bond  as 
a  security  for  the  good  behavior  or  good  conduct  of  any  in- 
dividual in  any  office,  this  bond  was  binding  on  his  executors 
as  long  as  he  continued  in  that  office.  He  had  himself  known 
a  similar  bond  of  X  10,000  paid  by  executors,  though  the  bond 
was  executed  twenty  years  ago. 

"  Mr.  Park  said  he  wished  this  might  be  generally  known,  as 
it  would  make  men  a  little  more  cautious  in  entering  into 
such  securities. 


48  STRAFFORD. 


Carr  v.  Ladd. 


"The  verdict  was  [then]  given  for  the  plaintiff  [subject  to 
a  reference  on  the  accounts]."  (a) 

Securities  given  by  executors,  administrators,  and  guardians, 
in  this  State,  must  all  stand  upon  the  same  footing  with  the 
present ;  and  it  never  was  doubted  that  the  estates  of  the 
bondsmen  were  liable,  though  the  waste  was  committed  after 
their  death. 

The  proper  remedy  against  the  mischiefs  that  have  been 
suggested  by  the  counsel  for  the  defendant  would  be  for  the 
sureties  to  stipulate  only  for  a  certain  time  ;  or  to  introduce  a 
stipulation  that,  on  notice  by  the  surety  that  he  would  no 
longer  be  holden,  the  responsibility  should  terminate.  If  no 
such  covenants  are  inserted,  and  the  covenantors  oblige  them- 
selves as  long  as  the  deputy  remains  in  office,  it  must  depend 
on  the  pleasure  of  the  sheriff  how  long  they  shall  be  bound. 
Arguments  from  inconvenience  have  no  place  where  the  law 
is  clear.  The  administrator  must  answer  for  defaults  till  the 
deputation  given  to  Nathaniel  Ladd  was  revoked.  (6) 

Judgment  for  amount  of  penalty  of  the  bond.  Execution  for 
damages^  $957.20,  and  costs} 

(a)  See  Boston  Gazette,  Sept.  1,  1803.* 

(b)  Sureties  in  a  recognizance  to  keep  the  peace,  it  is  said,  are  not 
discharged  by  their  death;  their  executors  or  administrators  continue 
bound.  4  Burn,  268,  269;  1  Hawk.  P.  C.  129;  Dalt.  c.  120;  1  Hawk. 
P.  C.  b.  1,  c.  60,  §  17,  p.  258. 

^  This  decision  is  supported  by  Whitens  Ex^rs\.  Commonwealth,  1861, 
39  Pa.  St.  167 ;  and  Royal  Ins.  Co.  v.  Davies,  1875,  40  Iowa,  469. 

In  Calcert  v.  Gordon,  1828,  7  Barn.  &  C.  809  (s.  c.  3  Man.  &  R.  124), 
and  Gordon  v.  Calcerl,  1828,  2  Sim.  253 ;  (s.  c.  1828,  4  Russ.  581),  the  con- 
troversy arose  out  of  a  bond  for  the  fidelity  of  a  clerk.  Soon  after  the 
surety's  death,  his  executrix  gave  a  written  notice  to  the  obligors,  that  she 
would  no  longer  remain  surety ;  but  she  was  nevertheless  held  liable  for 
breaches  occurring  after  the  giving  of  the  notice.  The  position  that  the 
surety's  death  ipso  facto  relieved  his  estate  from  liability  for  subsequent 
breaches  was  not  suggested. 

Whether  a  guaranty  of  the  payment  by  another  for  goods  to  be  sold  or 

*  Annexed  to  the  manuscript  is  a  printed  slip,  which  seems  to  have  been  cut  from 
the  "  Boston  Gazette,"  containing  a  report  of  Heaver  v.  Thompson,  substantially  the  same 
as  recited  ia  the  opiuiou. 


OCTOBER   TERM,  1803.  49 


French  v.  Watkins 


CHESHIRE,   OCTOBER   TERM,    1803. 


Abel  French  v.  Alexander  Watkins. 

A  slierifE  attached  goods  and  delivered  them  to  the  creditor,  taking  liis  receipt, 
wliich  contained  a  promise  "  to  see  tliem  forthcoming  when  called  for  ''  After- 
wards the  sheriff  attached  the  same  goods  on  a  writ  in  favor  of  another  cred- 
itor. The  receiptor  knew  of  the  second  attachment.  Subsequently  the  first 
suit  was  compromised,  and  the  receiptor  delivered  the  goods  to  the  debtor. 
After  this  delivery,  the  sheriff  demanded  the  goods  of  the  receiptor,  in  order 
to  levy  on  them  to  satisfy  the  judgment  of  the  second  attaching  creditor,  and, 
upon  the  receiptor's  refusal,  brought  assumpsit. 

Held,  that  the  receiptor  was  not  liable.  The  delivery  to  him  was  for  a  special 
purpose,  viz.,  to  hold  them  to  satisfy  his  action,  and  to  indemnify  the  sheriff 
against  the  debtor ;  and  these  objects  had  both  been  fulfilled.^ 

This  was  an  action  of  assumpsit.  The  declaration , stated 
that  the  defendant,  at  W.,  Dec.  11, 1799,  in  consideration  that 
the  plaintiff,  at  the  request  of  the  defendant,  had  delivered  liim 
two  feather-beds,  with  the  furniture  thereto  belonging,  of  the 
value  of  $70,  by  his  memorandum  of  that  date,  promised  the 

moneys  to  be  advanced,  the  guaranty  being  stipulated  to  continue  until 
notice  given,  will  be  terminated  by  the  death  of  the  guarantor,  quaere  f 

In  Bradbury  v.  Morgan,  1862,  1  Hurlst.  &  C.  249,  it  was  held,  that  death 
does  not  terminate  such  a  guaranty.  Contra,  Jordan  v.  Dobbinx,  1877, 
122  Mass.  168.  In  both  cases  the  advances  sought  to  be  recovered  were 
made  without  notice  of  the  death  of  the  guarantor.  The  point  in  contro- 
versy has  been  whether  such  a  guaranty,  until  acted  upon,  is  to  be  regarded 
as  a  contract,  or  as  merely  in  the  nature  of  an  authority. 

In  Harriss  v.  Fawcett,  1873,  L.  R.  8  Ch.  App.  866;  s.  c.  L.  R.  15  Eq. 
311,  Lord  Romilly,  M.  R.,  and  Hellish,  L.  J.,  differed  as  to  the  cor- 
rectness of  the  decision  in  Bradbury  v.  Morgan ;  but,  upon  the  facts,  as 
found  by  the  appellate  court,  the  case  was  disposed  of  upon  other  grounds. 

1  The  Manuscript  Digest  contains  the  following  abstract  of  this  deci- 
sion :  — 

"  Attachment  of  goods,  receiptor  only  answerable  to  the  oflBcer  iu  case 
of  judgment  for  creditor  and  demand  to  levy  on  them  in  thirty  days.  If 
suit  compromised,  receiptor  may  deliver  the  goods  to  former  owner.  If 
officer  do  not  demand  them  of  receiptor,  but  return  them  as  attached  on 
second  writ,  this  shall  not  prejudice  the  receiptor." 

4 


50  CHESHIRE. 


French  i'.  Watkins. 


plaintiff  to  redeliver  the  same  to  him  on  demand  ;  yet,  though 

requested,  at  ,  on  ,  to  do  so,  he  had  not  done  it,  but 

had  neglected  and  still  neglects  it. 

Plea  :  the  general  issue. 

The  memorandum  declared  on  was  produced  and  read.  It 
acknowledged  the  receipt  of  the  goods  mentioned,  and  prom- 
ised generally  to  see  them  forthcoming  when  called  for.  The 
f)Ccasion  of  giving  the  receipt  was  this :  The  defendant,  Wat- 
kins,  had  a  writ  against  Calvin  Darling,  and  the  goods  in 
question  were  attached  by  the  plaintiff,  a  deputy  sheriff,  by 
defendant's  directions,  to  lespond  to  the  judgment  that  might 
be  recovered  in  that  suit,  and  were  innnediately  delivered  to 
Watkins,  the  creditor,  to  be  safely  kept,  and  the  memorandum 
made  for  security  to  the  officer. 

Afterwards  the  plaintiff  had  a  writ  put  into  his  hands,  Caleb 
Bello7Vs  V.  Calvin  Darling^  and  he  attached  the  same  goods 
on  this  latter  writ,  Dec.  17,  1799.  Watkins  knew  of  this  sec- 
ond attachment.  Afterwards  the  matter  was  settled  between 
Watkins  and  Darling,  and  the  suit  compromised.  Bellows 
proceeded  to  judgment  against  Darling,  and,  before  the  com- 
mencement of  this  suit,  the  plaintiff  demanded  the  goods  in 
question  of  Watkins,  who  refused  to  deliver  them,  —  he  having 
delivered  them  to  Darling  on  the  compromise  of  the  suit,  (say) 
after  Dec.  17,  1799,  and  before  April  1  following. 

This  was  the  evidence,  in  substance;  and  upon  this  evidence 
the  counsel  submitted  the  cause  to  the  Court,  and  it  was  with- 
drawn from  the  jury. 

R.  Vose,  for  the  plaintiff. 
B.  West,  for  the  defendant. 

It  was  the  opinion  of  a  majority  of  The  Court,  that  Watkins 
was  not  answerable  on  this  memorandum.  The  delivery  to 
liim  was  for  a  special  purpose,  namely,  to  hold  them  to  satisfy 
his  action  and  to  indemnify  the  officer  against  Darling.  These 
objects  have  been  both  fulfilled.  The  action  is  settled.  Wat- 
kins makes  no  claim  on  the  officer  for  the  goods ;  and  Darling 
makes  none, —  he  has  got  the  goods.  They  were  taken  for  a 
special  purpose,  and  that  purpose  is  answered.     The  meaning 


OCTOBER   TERM,  1803.  61 

French  v.  Watkins. 

of  the  defendant's  engagement  to  the  officer  is  no  more  than 
this:  "  On  your  attachment,  I  can  look  to  you  for  these  goods; 
you  can  detain  them  against  Darhng  till  this  suit  is  settled,  or 
till  I  discharge  them."  "  I  have  received  the  goods ;  I  will 
not  look  to  you,  and  I  will  see  them  forthcoming  if  Darling 
looks  to  you  for  them."  (a) 

What  took  place  on  the  17th  December,  when  the  officer 
attached  these  goods  at  the  suit  of  Bellows,  cannot  enlarge 
the  defendant's  previous  engagement  to  the  plaintiff.  To  make 
himself  secure,  the  officer  should  then  have  exacted  a  promise 
from  defendant,  that  he  would  hold  the  goods  to  answer 
that  suit  as  well  as  his  own.  The  mere  act  of  attaching  the 
goods  in  the  hands  of  Watkins  imposed  no  obligation  on  Wat- 
kins  to  keep  them  safe.^  An  officer  cannot,  at  his  own  will 
merely,  impose  such  an  obligation.  Here  was  no  consent  of 
the  defendant  to  contract  any  new  engagement.  If  he  had 
been  summoned  by  Bellows  as  trustee,  then  he  could  not  have 
safely  delivered  up  the  goods  to  Darling.  Watkins  was  guilty 
of  no  breach  of  trust  or  promise  [in]  not  suffering  French  to  take 
the  goods  on  the  17th  December,  when  French  attached  at  the 
suit  of  Bellows,  because  his  own  debt  was  not  then  settled. 
He  was  guilty  of  no  such  breach  when  the  demand  was  made, 
because  his  engagement,  made  Dec.  11,  1799,  was  fulfilled  by 
delivery  to  Darling  on  settlement  of  the  action.  He  engaged 
to  see  the  goods  forthcoming ;  that  is,  ready  for  the  person 
entitled  to  demand  them.  If  the  suit  had  not  been  settled,  and 
he  had  directed  the  officer  to  levy  on  them,  they  must  be  pro- 
duced to  the  officer.  If  the  suit  was  compromised,  or  the 
judgment  otherwise  satisfied,  or  no  levy  made  in  thirty  days, 
then  his  engagement  was  to  see  them  forthcoming,  ready  to 

be  delivered  to  the  debtor. 

The  plaintiff  became  nonsuit.^ 

(a)  Buel  V.  Metcalfe,  in  error,  Kirby,  40.  On  promise  in  writing  to 
redeliver  to  plaintiff,  an  officer,  goods  attached  on  mesne  process,  on 
demand.  Plea:  no  demand  till  expiration  of  sixty  days,  then  restored 
them  to  original  owner.     Demurrer.     Plea  good,  &c. 

^  As  to  the  liability  of  the  officer  to  the  second  attaching  creditor,  see 
Chapman  v.  BelUnvs,  reported  post. 

2  In   Whitney  v.    Farwell,   1838,    10  N.    H.  9,  13,  14,  Parker,  C.  J., 


52  ROCKINGHAM. 


Hart  V.  Little. 


ROCKINGHAM,    FEBRUARY   TERM,    1804. 


Edward  Hart  v.  Daniel  Little,  L.  Johnson,  and 
Nathaniel  Webber. 

Debt  lies  upon  the  original  judgment,  although   the  result  has  been  partially 
reversed  on  review. 

Debt  on  judgment  recovered  February  Term,  Superior 
Court,  Rockingluun  County,  1799  ;  amount  $1297.77. 

1st  plea.  The  judgment  now  sued  reversed  in  part  on 
review.     Demurrer  ;  joinder. 

[Other  points  which  were  raised  in  the  case  are  omitted  in 
this  report.] 

said  that,  while  the  receiptor  retains  actual  possession,  the  sheriff 
may  make  a  second  attachment,  without  again  seizing  the  property,  by 
making  a  return  of  an  attachment,  and  giving  the  receiptor  notice,  with 
directions  to  hold  the  property  to  answer  upon  the  second  attachment  also; 
if  the  receiptor  is  unwilling  to  incur  farther  responsibility,  he  may,  upon 
such  notice,  decline  to  hold  the  property  for  the  security  of  any  demand, 
except  that  upon  which  it  was  first  attached,  and  return  it  to  the  custody 
of  the  sheriff. 

In  Tomlinson  v.  Collins,  1850,  20  Conn.  364,  it  was  held,  that,  where  an 
officer  has  placed  attached  property  in  the  creditor's  possession,  to  keep  for 
him,  a  second  attachment  in  fact  (not  a  mere  constructive  attachment)  is 
valid,  although  the  bailee  is  not  notified  of  the  second  attachment.  See 
also  Brainard  v.  Bushnell,  1835,  11  Conn.  IG. 

Waterman  v.  Treat,  1860,  49  Me.  309,  is  not  in  point;  because  the  Court 
regarded  the  first  attachment  as  dissolved  upon  the  delivery  of  the  goods  to 
the  receiptor  upon  the  form  of  receipt  there  given. 

In  Chittenden  v.  Rogers,  1866,  42  111.  100,  it  was  said  that,  to  make  a 
valid  attachment  or  levy  on  personal  property,  which  has  been  already 
seized  on  process  and  placed  in  the  hands  of  the  official  "custodian"  in 
Chicago,  the  officer  should  go  to  the  custodian,  and  there,  in  sight  of  the 
property,  make  a  levy  and  indorse  it  on  the  writ,  and  notify  the  custodian 
of  his  act. 

As  to  the  rules  of  construction  applicable  to  receipts  for  attached  prop- 
erty, see  Doe.  J.,  in  Spear  v.  Hill,  1872,  52  N.  H.  323,  327,  330. 


FEBRUARY   TERM,  1804. 


Brown  v.  Hoit. 


By  the  Court.  This  does  not  destroy  the  judgment. 
This  point  was  so  decided  in  Hodydon  v.  Lougee,  Strafford, 
September  Term,  1798  [reported  post].  It  has  not  the  effect 
which  a  reversal  on  error  would  have.  The  first  judgment 
remains  good,  but  the  executions  may  be  set  off.  {ay 


Jeremiah  Brown  v.  Joseph  Hoit  and  Abigail  Hoit. 

The  words  "  against  the  form  of  the  statute  "  are  not  indispensable  in  a  declara- 
tion in  debt  to  recover  a  statute  penalty.  An  allegation,  that  the  offence  was 
committed  "against  the  law  in  that  behalf  made  and  provided,"  is  sufficient. 

Two  persons  may  be  jointly  sued  in  an  action  of  debt,  to  recover  the  statute  pen- 
alty for  a  single  unlicensed  sale  of  liquor. 

Debt,  to  recover  penalties  for  selling  rum  by  retail  without 
license. 

The  declaration  contained  several  counts.     The  first  was  as 

follows :  — 

For  that  the  said  Joseph  and  Abigail,  at  said  Brentwood, 
on  the  eighth  day  of  December,  1801,  they  being  then  and 
ever  since  partners  in  trade  at  said  Brentwood,  without  license 
first  had  and  obtained  in  writing  from  the  selectmen  of  said 
town  of  Brentwood,  to  which  the  said  Joseph  and  Abigail 
then  and  ever  since  have  belonged,  did  sell  two  gills  of  rum 
unto  one  D.  L.  in  a  less  quantity  than  one  pint  by  them  sold 
and  delivered  at  one  and  the  same  time.    And  the  said  Joseph 

(a)  It  has  been  said  that  this  declaration  is  bad,  because  it  has  been  in 
part  satisfied,  and  the  plaintiff  was  bound  to  show  this  in  the  declaration; 
and  Marsh  v.  Cutler,  3  Mod.  41,  is  cited. 

This  case  only  shows  that  you  cannot  sue  for  a  sum  less  than  the  whole 
sum  recovered  by  the  judgment  without  showing  in  the  declaration  how 
the  residue  has  been  satisfied;  i.  c,  you  cannot  divide  an  entire  debt  and 
bring  two  actions  for  an  entire  sum,  but  if  part  is  paid,  you  may  sue  for 
the  residue.  But  you  may  sue  for  the  whole  sum,  and  are  not  obliged  to 
state  what  part  has  been  paid. 

1  See  note  to  Haven  v.  Libbey,  reported  post. 


54  ROCKINGHAM. 


Brown  v.  Iloit. 


and  Abigail  did  then  and  there  commit  an  offence  against  the 
law  in  that  behalf  made  and  provided  ;  whereby  they  have 
forfeited,  &c.,  and  a  plea  hath  arisen  and  accrued  to  the  said 
Brown  to  demand,  have,  and  recover,  of  the  said  Joseph  and 
Abigail,  the  aforesaid  sum  of  $6.66,  to  be  disposed  of  accord- 
ing to  law  ;  yet,  though  often  requested,  they  have  not  paid 
said  sum,  but  detain  it. 

The  other  counts  were  similar  to  the  first. 

Demurrer  to  the  whole  declaration,  and  joinder. 

Two  objections  were  made  :  — 

1.  That  the  declaration  does  not  conclude  contra  formam 
statuti. 

2.  That  two  persons  are  jointly  sued  for  an  offence  which  in 
its  nature  is  several. 

At  this  Term  the  opinion  of  the  Court  was  delivered  by 
Smith,  C.  J. 

I.  Actions  on  penal  statutes  bear  a  close  analogy  to  indict- 
ments and  informations  on  such  statutes,  and  it  is  un- 
questionably true  that  indictments  founded  on  a  statute  must 
conclude  against  the  form  of  the  statute.  Amer.  Free.  63  ; 
2  Hawk.  P.  C,  c.  25,  §  116  ;  2  East,  340.  And  it  seems  to  be 
well  settled  at  this  day  that,  where  the  offence  for  which  the 
penalty  is  given  is  not  an  offence  at  common  law,  it  must  be 
alleged  in  penal  actions,  as  well  as  in  indictments  and  in- 
formations, to  be  against  the  form  of  the  statute.  You  need 
not  recite  the  statute  if  it  be  a  public  one  ;  but  you  must 
state  a -case  within  it,  and  in  some  manner  show  tiiat  the 
offence  on  which  you  proceed  is  an  offence  against  the  statute. 
The  reason  of  the  rule  is,  that  every  offence  for  which  a  party 
is  prosecuted  is  supposed  to  be  prosecuted  as  an  offence  at 
common  law,  unless  the  prosecutor,  by  a  reference  to  some 
statute,  shows  that  he  means  to  proceed  upon  a  statute.  If 
there  be  no  such  express  reference,  and  the  matter  charged 
be  no  offence  at  common  law,  the  Court  will  not  look  to  see 
if  it  be  an  offence  by  statute. 

Let  us  see  how  the  present  case  compares  with  this  rule. 


FEBRUARY   TERM,  1804.  o5 

Brown  v.  Hoit. 

It  lias  been  determined  that  if  the  declaration,  after  descrihinjr 
the  offence,  contain  these  words  —  "whereby,  and  by  force 
of  tiie  statnte,  &c.,  an  action  hath  accrued,"  &c.,  tliis  will  not 
snpply  the  want  of  the  all(!^ation,  that  tlie  offence  was  com- 
mitted against  the  form  of  the  statnte.  But  it  is  to  be  noted 
that,  in  tlie  case  where  this  was  holden,  the  action  was 
founded  on  four  statutes;  and  one  of  the  judges  intimates 
an  opinion  that,  if  the  conclusion  had  been  "•  whereby,  and  by 
force  of  the  statutes  (in  the  plural  number)  in  such  case  made 
and  provided,"  &c.,  this  would  have  been  such  a  reference 
to  the  statutes  as  would  show  the  prosecutor's  intention  to 
proceed  upon  them  and  not  at  common  law  ;  and  all  the 
judges  lay  some  stress  on  this  circumstance,  that  the  word 
statute  (in  the  singular  number  only)  was  used. 

The  present  action  is  founded  on  one  statute  or  law,  which 
is  a  public  one,  and  referred  to  in  the  declaration  in  these 
words  —  "and  the  said  Joseph  and  Abigail"  (after  having 
mentioned  the  fact  which  is  the  foundation  of  the  action) 
"did  then  and  there  commit  an  offence  against  the  law  in 
that  behalf  made  and  provided,  whereby  they  have  forfeited, 
&c.,  and  a  plea"  (which  means  an  action)  "hath  accrued 
to  the  plaintiff  to  recover  the  penalty."  If  the  word  statute 
had  been  used,  instead  of  law,  it  will  hardly  be  pretended 
that  it  would  be  insufficient.  Now,  from  the  terms  in  which 
the  rule  is  laid  down  in  the  case  of  Lee  v.  Clarke,  in  error, 
2  East,  340,  it  is  evidently  not  indispensably  necessary  to  use 
the  words  "against  the  form  of  the  statute."  These  are 
not  considered  as  technical  words  which  cannot  be  supplied 
by  others  of  -,similar  import,  as  is  the  case  with  the  words 
"force  and  arms  "  in  an  action  of  trespass,  '•'■  murdravit^^  or 
"murder"  in  an  indictment  for  killing  with  malice  prepense, 
"against  the  peace  and  dignity  of  the  State"  in  indictments 
and  informations,  and  many  other  instances  that  might  be 
mentioned.  This  appears  evident  from  the  cases  decided  by 
Lord  Holt,  and  referred  to  in  2  East,  340.  It  was  there 
held,  that  the  words  "  in  a  plea  of  trespass  and  contempt 
against  the  statute,"  in  the  beginning  of  the  declaration,  was 


66  ROCKINGHAM. 


Brown  v.  Hoit. 


a  sufficient  reference  to  the  statute,  witliout  alleging  that 
the  offence  was  committed  contra  formam  staUiti.  And  Loud 
Ellenborough  lays  down  the  rule,  after  adverting  to  those 
cases,  as  has  been  already  mentioned,  namely,  that  in  all 
cases  where  the  action  is  founded  on  a  statute,  it  is  necessary 
in  some  manner  to  show  that  the  offence  on  which  you  pro- 
ceed is  an  offence  against  a  statute. 

Here,  I  think,  there  are  words  sufficient  for  that  purpose. 
Though  the  word  "law  "  is  not  so  proper  as  "act  of  the  legis- 
lature," or  "  statute,"  and  applies  to  common  as  well  as 
statute  law,  yet  when  it  is  followed  by  the  words  "  in  that 
behalf  made  and  provided,"  which  are  always  used  when 
speaking  of  a  statute,  and  never  with  reference  to  the  com- 
mon law,  the  meaning  is  too  obvious  to  be  mistaken  ;  (a)  and 
the  Court  are  bound  to  conclude  that  the  prosecutor  intends 
to  proceed  on  statute  and  not  on  common  law. 

II.  The  second  exception  to  this  count  is  more  easily  dis- 
posed of.  (5) 

Offences,  as  it  respects  the  offenders,  or  persons  committing 
them,  may  be  such  — 

1.  As  can  only  be  committed  by  one  person. 
■   Or,  2.  Such  as  can  only  be  committed  by  more  than  one. 

Or,  3.  Such  as  may  be  committed  by  one  or  more. 

Of  the  first  description  is  the  crime  of  perjury.  Every  man 
swears  for  himself,  and  not  for  anotlier,  2  Hawk.  P.  C.  c.  25, 
§89. 

(a)  In  the  heads  of  the  statutes  passed  by  the  legislature  of  'the 
Province  of  Massachusetts,  1699,  &c.,  it  is  said.  Acts  and  Laws  passed, 
&c.,  93,  and  passim.  The  title  of  the  book  is  the  same.  The  title  of  the 
New  Hampshire  Laws,  ed.  1771,  is  similar.  The  edition  of  1805  is  called 
Laws  of  the  State  of  New  Hampshire,  &c. 

See  Hilton  v.  Ames,  7  Manuscript  Reports  (Cases  before  Revolution),  43, 
which  was  trespass  for  cutting  and  carrying  away  trees  "  contrary  to  the 
acts  and  laws  of  our  said  Province,  in  that  case  made  and  provided,  whereby 
defendants  have  forfeited,"  &c.     The  suit  was  for  the  statute  penalty. 

Manuscript  Extracts  from  Old  Records;  statutes  are  called  "  laws  made 
last  assembly."  p.  19. 

(6)  On  this  head,  see  2  Wms.  Saund.  117  a,  n.  2. 


FEBRUARY   TERM,  1804.  57 


Brown  v.  Hoit. 


Of  the  second  class  are  riots,  conspiracies,  &c. 

To  the  third  class  belong  assaults,  batteries,  thefts,  libels, 
&c.  There  have  been  many  absurd  determinations  on  this 
subject.  It  was  once  holden  that  a  person  could  not  be  in- 
dicted for  a  battery  on  two.  But  this  was  well  ridiculed  in 
a  question  put  by  Lord  Mansfield.  Cannot  the  King  call 
a  man  to  account  because  he  broke  two  heads  instead  of  one  ? 
2  Burr.  980,  984. 

It  has  been  determined  that  two  persons  may  be  joined  in 
an  indictment  for  keeping  a  gaming-house,  for  maintenance, 
for  extortion,  &c.  2  Hawk.  P.  C.  25,  §  89 ;  1  G.  Bacon,  68. 
Two  persons  may  concur  in  the  act  of  selling  a  gill  of  rum  ; 
and,  if  neither  is  licensed,  the  offence  is  committed  by  both  ;  if 
one  licensed,  he  is  not  an  offender,  (a)  It  was  not  necessary  to 
allege  that  the  defendants  were  partners  in  trade,  yet  it  might 
be  material  to  charge  both  on  the  general  issue.  And,  if  the 
partnership  were  proved,  and  that  the  liquor  was  bought  by 
both,  to  sell  out  by  retail,  though  actually  sold  by  one  without 
any  particular  direction  from  the  other,  it  is  difficult  to  see 
how  he  could  protect  himself  from  any  consequence  which 
flowed  from  the  act.  (i)  In  the  present  case  it  is  stated  that 
both  sold.  Both  might  sell.  The  act  is  not  several  or  sin- 
gle in  its  nature,  with  respect  to  the  agents  employed  in 
doing  it. 

(a)  See  2  East,  569,  Barnard  v.  GostUng ;  one  may  have  been  acquitted 
and  the  other  convicted.     Sed  vide  1  N.  R.  (4  Bos.  &  P.)  245. 

(ft)  The  King  v.  Rusby,  before  Lord  Kenyon,  at  Guildhall,  July  4, 
1800  (107  Univ.  Mag.  July,  1800,  65).  Indictment  for  regrating  thirty 
quarters  of  oats.  The  defendant  was  a  partner  with  Thomas  Smith  and 
William  Smith.  The  defence  was  that  the  re-sale  was  by  Thomas  Smith, 
the  other  partners  dissenting  from  it  ;  and  the  doctrine  is  that  the  act  of 
one  partner  is  not  the  act  of  another  in  a  crime.  Lord  Kenyon  did  not 
believe  the  evidence  of  the  fact  (that  Thomas  Smith  re-sold  and  that 
defendant  dissented),  but  told  the  jury  that  the  defendant  was  liable  for 
acts  committed  by  his  partners  where  his  interest  was  concerned.  Was 
not  his  interest  concerned  in  this  case,  when,  in  consequence  of  this  second 
sale,  there  was  a  profit  of  five  per  cent  ?  It  was  equally  for  the  benefit  of 
the  whole  partnership.     Verdict,  guilty. 


58  ROCKINGHAM. 


Brown  v,  Hoit. 


Neither  of  these  exceptions  are  sufficient  in  law  to  warrant 
us  in  pronouncing  the  dechiration  bad.  There  must  there- 
fore be  '  Judgment  for  the  plaintiff .  (^a}  ^ 

(a)  6  G.  Bacon,  393.  One  penalty  only  can  be  recovered  against  both;* 
I.  e.,  both  are  liable  for  the  penalty  or  penalties  incurred,  and  not  each. 
On  an  indictment  each  would  be  liable  for  the  penalty. 

See  Cowp.  192,  610,  612. 

1  The  following  conclusions  have  been  held  insufficient  :  — 

"  Against  the  law  in  such  case  provided."  •  Commomveallh  v.  Stockbridge, 
1814,  11  Mass.  279  (and  see  Commomceallhv.  Morse,  1806,  2  Mass.  138;  and 
Peahodri  v.  Haijt,  10  Mass.  1813,  36,  39).  "  And  thereby,  and  by  force  of  the 
statute  in  such  case  made  and  provided,  an  action  hath  accrued."  Nichols 
V.  Squire,  1827,  5  Pick.  168.  "  Whereby  ...  an  action  hath  accrued  to 
the  plaintiff  by  force  of  laws  and  acts  aforesaid."  Haskell  v.  Moody,  1829, 
9  Pick.  162.  "  Whereby,  and  by  force  of  the  laws  and  statutes  of  the  said 
United  States,  ...  an  action  hath  accrued."  Cross  v.  United  Slates, 
1812.  1  Gall.  26.  "Whereby,  and  by  force  of  said  act,"  the  defendant 
hath  forfeited  "to  the  uses  expressed  in  said  statute,  .  .  .  and  an  action 
hath  accrued."  Sears  v.  United  States,  1812,  1  Gall.  2.57.  "Contrary  to 
the  law  in  such  case  made  and  provided."     Smith  v.    United  States,  1812, 

1  Gall.  261.  "  In  contempt  of  the  laws  of  the  United  States  of  America." 
United  Slates  V.  Andrews,  1832,  2  Paine,  451.  "And  thereby,  and  by 
force  of  the  statute  in  such  case  made  and  provided,  an  action  hath 
accrued."      Wells  v.  Tggulden,  1824,  3  Barn.  &  C.  186. 

The  following  conclusions  have  been  held  sufficient :  — 

"  Contrary  to  the  true  intent  and  meaning  of  the  act  of  the  Congress 

of  the  United  States  in  such  case  made  and  provided."     United  Slates  v. 

Smith,  1820,  2  Mason,  143.     "  Contrary  to  the  act  of  the  General  Assembly 

of  the  said  State,  in  such  case  made  and  provided."     State  v.  Turnage,  1819, 

2  Nott  &  M.  158.  "  Contrary  to  the  statute."  State  v.  Toadoine,  1796, 
1  Brev.  16  (and  see  Commonwealth  v.  Caldwell,  1817,  14  Mass.  330).  "  By 
reason  whereof,  and  by  force  of  the  statute  in  such  case  made  and  pro- 
vided, an  action  hath  accrued  to  the  State  to  recover."  Crain  v.  The  State, 
1830,  2  Yerg.  390.  (After  reciting  the  statute  and  describing  the  offence 
ac(5ording  to  the  statute.)  "  Whereby,  &c.,  by  force  of  the  statute  in  this 
case  made  and  provided,  the  defendant  forfeited  SIOOO ;  and,  by  force  of 
the  statute,  an  action  hath  accrued."  People  v.  Bartoiv,  1826,  6  Cow.  290. 
(After  declaring  on  the  statute  by  its  title,  reciting  a  part  of  the  provisions, 
and  setting  out  a  breach.)  "  By  reason  of  the  premises,  and  by  force  of 
said  statute,"   the  defendant  has  become   liable.     Barkhamstead  v.    Par- 

•  S.  P.  Tracy  v.  Perry,  1831,  5  N.  II.  504. 


FEBRUARY    TERM,  1804.  59 

Brown  v.  Hoit. 

Tliis  action  was  founded  on  §  1  of  act  of  June  14,  1791,  ed. 
1805,  336. 

The  defendants  had  leave  to  withdraw  their  demurrer  after 
the  judgment  of  the  Court  was  given,  but  before  it  was  en- 
tered, on  payment,  within  six  weeks,  of  all  costs  already 
accrued.  It  is  conceived  that  this  order  was  not  complied 
with,  and  that  at  the  next  Term  judgment  was  entered  by 
agreement  of  parties,  in  favor  of  plaintiff,  for  a  certain  number 
of  penalties. 

sons,  1819,  3  Conn.  1.  "That,  by  force  of  said  statute,  an  action  has 
accrued."  Doane  v.  Cummins,  183.5,  11  Conn.  152.  (In  a  revenue  infor- 
mation, after  stating  the  offence  minutely,  so  as  to  bring  it  within  the  act.) 
That,  by  reason  thereof,  the  defendant's  boat  was  forfeited  "  according  to 
the  statute  in  that  case  made  and  provided,"  and  .  .  .  that  defendant  had 
thereby  forfeited  a  certain  sum,  the  Commissioners  of  Customs  having 
"  by  virtue  of  the  said  statute  "  elected  to  sue  for  the  treble  value  of  the 
goods,  instead  of  the  penalty.  Attorney- General  v.  Rattenbury,  1821, 
9  Price,  397. 

See  also  Weston,  J.,  in  Barter  v.  Martin,   1827,  5  Greenl.  7G,  79. 

Under  the  statutes  now  in  force  in  some  States  an  insufficient  conclu- 
sion is  not  a  fatal  defect.  See  1  Arch.  Cr.  Prac.  &  PL,  Am.  ed.  18G0,  307; 
also  State  v.  Trihatt,  1849,  10  Ired.  151;  Levy  v.  Gowdy,  1861,  2  Allen. 
320. 

An  indictment  against  two  persons  for  a  single  unlicensed  .sale  of  liquor 
was  sustained  in  Commonwealth  v.  Tower,  1844,  8  Mete.  527;  and  also  in 
Commonwealth  v.  Sloan,  1849,  4  Cush.  52.  In  State  v.  Wicjgin,  1846, 
20  N.  H.  449,  and  State  v.  Burns,  1847,  20  N.  H.  550,  the  objection  that 
two  respondents  were  improperly  joined  was  not  taken.  See  also  1  Bish. 
Cr.  Proc,  1st  ed.,  §  220. 


60  CHESHIRE. 


Fisher  v.  Steward. 


CHESHIRE.   MAY   TERM,    1804. 


Abraham  Fisher  and  Eliel  Parmele  v.  Jonas 
Steward. 

One  who  finds  a  swarm  of  bees  in  a  tree  on  another's  land,  marks  the  tree,  and 
notifies  the  land-owner,  cannot  maintain  trover  against  the  land-owner  for 
taking  the  honey. 

Trover  for  a  swarm  of  bees.  There  was  a  second  count 
for  two  hundred  pounds  of  honey  in  the  comb. 

The  case  was,  the  plaintiffs  found  a  swarm  of  bees  in  a  tree 
on  the  [defendant's]  land  in  Claremont,  marked  the  tree,  and 
notified  the  defendant,  who  cut  down  the  tree,  September, 
1803,  and  converted  the  honey  to  his  own  use. 

Plea  :  the  general  issue. 

At  the  trial  there  was  some  dispute  whether  the  plaintiffs 
or  one  of  the  defendant's  family  first  discovered  the  bees,  and 
whether  the  plaintiffs  gave  notice  of  the  finding  and  marking 
the  tree.     The  other  parts  of  the  case  were  proved. 

The  Court  summed  up,  and  observed  that  two  questions 
had  been  made  on  the  trial :  first,  whether  the  plaintiffs  first 
discovered  the  bees ;  and,  secondly,  supposing  they  did, 
whether  the  property  of  the  honey  was  in  them. 

The  first  is  a  question  of  evidence  proper  for  the  considera- 
tion of  the  jury. 

The  second  is  a  question  of  law,  and  one  about  which  the 
Court  entertain  no  doubt.  The  plaintiffs  do  not  pretend  to 
have  any  property  in  the  land  or  in  the  tree,  nor  had  they  any 
property  in  the  bees.  How  then  came  they  by  a  property  in 
the  honey  ?  It  must  have  been  by  occupancy.  But  how  did 
they  occupy,  or  appropriate  the  honey  to  themselves  ?  They 
saw  the  bees  enter  the  tree,  they  heard  them  make  a  noise 
near  the  tree,  and  they  marked  the  tree.     The  two  first  gave 


MAY   TERM,  1804.  61 

Fisher  v.  Steward. 

no  right ;  they  do  not  amount  to  occupancy-  The  marking 
of  the  tree  was  a  trespass,  and  consequently  can  avail  the 
plaintiffs  nothing,  (a)  The  doctrine  contended  for  by  plaintiffs 
is  injurious  to  the  rights  of  property.  Till  the  bees  occupied 
the  tree  in  question,  it  is  not  pretended  that  plaintiffs  had 
any  right  in  it.  What  gave  them  a  right?  Having  seen  a 
swarm  of  bees,  in  which  they  had  no  property,  occupying  it  ? 
This  circumstance,  whether  the  effect  of  accident,  or  the 
result  of  labor  and  skill,  cannot  lessen  the  rights  of  the  owner 
of  the  soil.  Will  it  be  pretended  that  plaintiffs  thereby  ac- 
quired a  right  to  the  tree?  If  they  acquired  a  title  to  the 
honey,  they  must  necessarily  have  a  right  to  take  it  away,  to 
cut  down  the  tree,  to  pass  over  the  defendant's  land  for  the 
purpose,  &c.  Admitting  that  plaintiffs  could  acquire  prop- 
erty in  a  swarm  of  bees,  or  in  the  honey,  by  finding,  in 
some  cases,  they  could  not  do  so  in  the  present  case,  because 
such  right  or  property  interferes  with  the  rights  and  property 
clearly  vested  in  defendant;  it  is  inconsistent  with  it;  it 
lessens  its  value  at  least.  It  is  much  more  consonant  to  our 
ideas  of  property  to  say,  that  the  bees  and  honey  in  the  de- 
fendant's trees  belong  to  him  in  the  same  manner  and  for  the 
same  reason  as  all  mines  and  minerals  belong  to  the  owner  of 
the  soil.  (6) 

(a)  Pierson  v.  Poxt,  3  Caines,  175. 

(6)  2  Blackst.  399-39 1.  Bees  are  ferce  naturce.  except  when  hived  or 
reclaimed;  when  a  swarm  lights  on  my  tree  they  are  not  mine.  But  it 
would  seem  that,  if  they  hive  themselves  in  my  tree,  they  are  then  mine, 
ratione  soli.  And,  if  they  are  found  on  my  ground,  I  have  a  qualified 
property  in  them;  to  the  young,  ratione impotendce ;  and  to  the  labor  of  the 
bees,  or  honey,  because  they  are  on  my  land  and  use  my  hive.  I  have,  on 
these  accounts,  to  say  the  least  of  it,  a  better  title  than  any  other  person. 
See  Shep.  Touch.  223  (226)  [5  Mod.  375,  cited  in  Manuscript  Digest]. 

It  would  seem,  by  c.  13  of  Charla  Forestce,  that  honey  belongs  to  the 
owner  of  the  ground. 

1  Reeves,  Hist.  Eng.  Law,  255;  Blackst.  Tracts,  83. 

2  Senator,  382,  498;  Tko.  Livingston,  appellant,  v.  Earl  of  Breadalbane, 
defendant.  Appeal  from  the  Court  of  Session  in  Scotland,  to  determine 
the  point  whether  a  gentleman,  qualified  bylaw  to  shoot,  is  entitled  to  kill 
game  on  the  unenclosed  lands  of  another  without  his  permission.  The 
House  of  Lords,  as  well  as  the  Court  of  Session,  determined  against  the 
right. 


62  CHESHIRE. 


Fisher  v.  Steward. 


Will  it  be  pretended  by  the  plaintiffs  that  they  could  have 
put,  without  defendant's  permission,  a  swarm  of  bees  into  the 
defendant's  tree,  and  there  kept  them  till  they  had  made 
honey;  and  then,  in  case  he  cut  down  the  tree,  maintained 
trespass  for  the  cutting,  or  trover  for  the  honey  ?  One  would 
suppose  that  the  present  case  was  not  stronger  than  that ; 
here  they  had  no  right  to  the  bees. 

It  has  been  said,  that,  by  the  usage  in  this  part  of  the  State, 
the  person  who  finds  bees  acquires  a  property  in  them  wherever 
found.  We  recognize  no  such  usage.  We  have  no  local  cus- 
toms or  usages  which  are  binding  in  one  part  of  the  State  and 
not  in  another.  If  this  be  the  law  here,  it  must  be  so  in  every 
other  part  of  the  State. 

Verdict  for  defendant.^ 

1  Sustained  by  Gillet  v.  Mason,  1810,  7  Johns.  16;  see  also  Cukia, 
in  Ferguson  v.  Miller,  1823,  1  Cow.  243,  244;  The  Court,  in  Merrils  v. 
Goodwin,  1790,  1  Root,  209;  Toomer,  J.,  in  Idol  v.  Jones,  1829,  2  Dev.  L. 
1G2-164. 

As  to  the  right  of  the  owner  of  bees,  which,  after  having  been 
reclaimed,  take  up  their  abode  in  a  tree  on  the  soil  of  another,  see  Ooff 
V.  Kills,  1836,  15  Wend.  550. 

As  to  the  conflicting  claims  of  third  persons  who  have  each  obtained 
the  consent  of  the  land-owner  to  the  taking  of  honey  from  a  tree,  see 
Adams  v.  Burton,  1870,  43  Vt.  36. 

In  Wallis  v.  Mease,  1811,  3  Binn.  546,  the  point  decided  was,  that 
taking  bees  from  a  tree  on  the  land  of  another  is  not  a  felony.  As  to  the 
right  of  property,  of  the  owner  of  the  soil,  in  the  bees,  Tilghman,  C.  J., 
and  Bracken RiDGK,  J.,  do  not  seem  agreed. 

Tlie  general  subject  of  the  property  of  the  owner  of  the  soil  in  wild 
animals  was  much  discussed  in  Blades  v.  Hic/gs,  1865,  11  H.  L.  621  (106 
Eng.  Com.  Law,  866),  where  it  was  held  "  that  game  killed  upon  the  land 
of  another  by  a  trespasser,  and  carried  off  by  him,  belongs  to  the  owner 
of  the  land." 


MAY    TERM,   1804.  63 


Harris  v.  Willard. 


Levi  Harris  v.  Jonas  Willard,  Samuel  Prouty, 
AND  James  Egerton. 

Tlie  purcliaser  of  a  tax  title,  wliicli  proves  invalid  by  reason  of  errors  in  the 
assessment,  cannot  sue  the  selectmen  for  errors  wiiich  are  not  due  to  fraud, 
malice,  or  wilful  neglect. 

Even  if  the  original  purchaser  at  the  tax  sale  could  maintain  such  an  action,  a 
purchaser  under  him  could  not. 

This  was  an  action  on  tlie  case. 

The  declaration  stated  that  the  defendants  were  duly 
appointed  and  qualified  selectmen  and  assessors  for  the  town 
of  Langdon  for  the  years  1787,  1788;  accepted,  and  entered 
upon  the  duties  of  the  said  offices;  "that  the  defendants, 
as  such  oflBcers,  were  by  law  obliged  to  make  out  under  their 
hands,  and  deliver  to  the  collector  of  taxes  for  said  Langdon, 
for  said  years,  a  good  and  sufficient  list  of  the  rates  and  taxes 
by  the  said  collector  to  be  collected  ;  and,  where  the  owners 
of  lands  in  said  Langdon  liable  to  be  taxed  were  not  resident 
therein,  and  were  known,  tliey,  the  said  selectmen,  ought  to  have 
assessed  such  lands  in  the  name  of  such  known  owner  ;  and, 
where  the  owners  of  such  non-resident  lands  were  not  known, 
then  the  said  selectmen  ought  to  have  assessed  such  lands  in 
the  name  of  the  original  proprietor  or  owner  thereof,  and 
each  lot  and  undivided  land  belonging  to  such  proprietor's  or 
owner's  share  ought  to  have  been  set  down  separately  in  said 
list  of  rates  and  taxes."  The  declaration  then  set  forth  that 
one  Levi  Fairbanks  was  duly  chosen  and  qualified  collector  of 
taxes  for  said  Langdon  for  the  said  years,  and  entered  upon 
the  duties  of  said  office  ;  "  and  the  plaintiff  avers  that  the 
defendants,  selectmen  and  assessors  as  aforesaid,  were  by  law 
obliged  to  deliver  to  the  said  Fairbanks,  collector  as  aforesaid, 
a  good  and  sufficient  list  of  the  rates  and  taxes  by  the  said 
Fairbanks  to  be  collected,  containing  all  the  facts  as  above 
specified,  and  signed  by  the  said  selectmen."  The  plaintiff 
then  avers  "  that  the  defendants,  regardless  of  their  duty  as 
selectmen  and    assessors    aforesaid,    did    not   make    out   and 


64  CHESHIRE. 


Harris  i;.  Willard. 


deliver  to  the  said  Fairbanks  a  good  and  suflBcient  list  of  the 
rates  and  taxes  by  the  said  Fairbanks,  in  his  said  capacity,  to 
be  collected  ;  but  they,  the  said  selectmen,  delivered  to  the 
said  Fairbanks  a  bad  and  insufficient  list,  &c.,  as  they  did  not 
sign  the  same,  nor  assess  the  lands  of  non-residents  either  in 
the  names  of  the  then  owners  or  of  the  original  proprietors 
or  owners  thereof ;  and  the  said  list  was  in  many  other 
respects  wholly  imperfect  and  insufficient." 

The  declaration  then  set  forth  that  the  collector,  Dec.  15, 
1789,  made  a  deed  of  conveyance,  for  a  valuable  consideration, 
to  one  Abiah  Walker,  of  forty  acres  of  land  situate  in  said 
Langdon,  he  being  the  highest  bidder  at  a  public  vendue 
duly  notified  and  holden  for  the  sale  of  lands  of  delinquent 
non-resident  proprietors  ;  that  Walker  afterwards,  on  April 
15,  1794,  conveyed  the  premises  to  one  Zenas  Fairbanks ; 
who,  June  8,  1797,  conveyed  to  the  plaintiff. 

The  declaraticm  then  set  forth,  that  one  Joseph  Jones,  at 
Superior  Court,  Cheshire,  May  Term,  1802,  recovered  against 
the  plaintiff  possession  of  the  said  forty  acres  of  land,  and 
costs  taxed  at  $34.51  ;  "  and  the  plaintiff  further  avers  that 
it  was  wholly  in  consequence  of  the  insufficiency  of  the 
aforesaid  lists  of  rates  and  taxes,  which  were  delivered  by  the 
defendants  as  aforesaid  to  the  said  Fairbanks,  that  the  plain- 
tiff's title  to  the  said  forty  acres  of  land  failed,  and  that  the 
same  was  legally  recovered  from  him  by  the  said  Jones ;  so, 
by  reason  of  the  default  and  malfeasance  of  the  defendants  in 
their  office  of  selectmen  and  assessors  aforesaid,  in  not  fur- 
nishing the  said  collector  with  proper  lists  of  rates  and  taxes, 
as  by  law  they  were  obliged  to  do,  the  plaintiff  has  been 
greatly  injured,  has  lost  said  land,  and  been  obliged  to 
expend  and  pay  the  sum  of  two  hundred  [dollars],  and  be  at 
great  trouble  and  pains,  to  his  damage,  five  hundred  dollars." 

The  defendants  demurred,  and  the  plaintiff  joined  in 
demurrer. 

Smith,  C.  J.,  after  stating  the  pleadings,  delivered  the 
opinion  of  the  Court. 

By  these  pleadings  it  is  admitted  that  the  defendants  were 


MAY   TERM,  1804.  05 


Harris  v.  Willard. 


selectmen  ;  that  they  made  a  list  of  taxes,  and  delivered  it 
to  the  collector,  which  was  not  signed  by  them  ;  and  that  in 
the  list  the  lands  of  non-residents  were  not  assessed  either  in 
the  names  of  the  then  owners  or  original  proprietor  ;  that 
forty  acres  sold  by  the  collector  to  a  person  under  whom  the 
plaintiff  claims  has  been,  through  the  insufficiency  of  the  list, 
recovered  from  the  plaintiff  in  a  suit  at  law. 

Are  the  defaults  and  malfeasances  thus  described  any 
cause  of  action  against  selectmen,  and  is  the  plaintiff  so 
situated  that  he  can  maintain  the  action  ? 

It  is  not  sufficient  to  state  generally  that  the  defendants 
were  guilty  of  neglect  of  duty  or  malfeasance  in  office,  that 
the  list  was  insufficient,  &c.  The  particular  defect  must  be 
pointed  out.  2  Ld.  Raym.  948.  Therefore  the  allegation, 
that  the  list  was  in  many  other  respects  wholly  imperfect  and 
insufficient,  is  of  no  avail ;  as  it  is  not  well  pleaded,  it  is  not 
confessed  by  the  demurrer.  These  defects  must  also  be  such 
as  to  vitiate  the  title.  Here  it  is  stated  that  the  title  failed 
on  account  of  the  defects  in  the  list,  but  whether  the  defects 
particularly  specified,  or  others,  is  not  alleged.  Perhaps  this 
part  of  the  declaration  is  not  material.  It  is  not  easy  to  see 
how  it  could  be  traversed  or  proved.  Perhaps  the  action 
may  as  well  lie  before  as  after  the  trial  of  the  title.  Certainly 
the  present  defendants  are  not  to  be  affected  by  a  judgment 
where  they  were  not  parties  to  the  suit. 

It  is  not  stated  in  this  declaration  that  the  defendants  have 
practised  any  fraud,  that  they  have  acted  maliciously,  or  that 
they  have  been  guilty  of  wilful  neglect.  They  would  doubt- 
less be  answerable,  if  either  of  these  things  were  stated  and 
proved  against  them.  But,  inasmuch  as  they  are  not  stated, 
we  are  not  to  presume  that  they  exist.  In  this  case  we  are  at 
liberty  to  indulge  the  charitable  spirit  of  the  law,  and  presume 
that  the  defendants,  if  they  erred,  erred  through  ignorance, 
inattention,  or  mistake,  not  from  design.  Even  this  error  is, 
in  many  cases,  sufficient  to  charge  persons  with  the  conse- 
quences of  their  doings  or  omissions,  —  as  in  the  case  of  persons 
receiving  a  reward  for  their  services ;  persons  clothed  with  a 

6 


66  CHESHIRE. 


Harris  v.  Willard. 


trust;  sheriffs,  and  ministerial  officers  generally.    But  is  it  suf- 
ficient to  charge  the  present  defendants? 

Before  we  attempt  an  answer  to  this  question,  we  will  first 
consider  whether  the  instances  of  default  or  malfeasance  speci- 
fied are  really  such. 

I.  In  omitting  to  sign  the  lists. 

The  act  of  June  12,  1784,  folio  ed.  324,  is  silent  on  the  sub- 
ject  of  signing  the  list  or  assessment. (a)  It  says,  tlie  lands  shall 
be  assessed  so  and  so  ;  that  the  assessment  shall  be  delivered 
to  the  collector;  that  a  cojiy  of  the  list  attested  by  the  select- 
men shall  be  forwarded  to  the  receiver  at  Exeter,  &c.  It  is 
well  known  that  in  many  cases  the  practice  was  for  the  select- 
men to  annex  the  list  to  the  warrant,  or  the  warrant  to  the 
list,  and  to  refer  to  it  in  such  a  manner  as  to  make  both  but 
one  instrument ;  the  warrant  was  signed,  and  that  answered 
for  l)Oth.  And  the  reason  for  requiring  the  selectmen  to  attest 
the  copy  of  the  list  forwarded  to  the  receiver  at  Exeter  prob- 
ably was  because  the  original  was  not  signed  by  them.  It  was 
probably  thought  improper  that  the  collector  should  certify  an 
extract  or  part  only. 

The  act  of  Feb.  8,  1791,  ed.  1797,  196,  197,  expressly  re- 
quires that  the  selectmen  shall  make  lists  under  their  hands, 
and  commit  the  same  to  the  collector,  with  a  warrant  under 
their  hands  and  seals  in  due  form  of  law.  These  lists  must  be 
signed,  because  they,  and  not  the  warrants,  are  to  be  recorded 
in  the  town-book  But  this  act  was  made  after  the  transaction 
now  under  consideration,  and  therefore  does  not  apply. 

It  is  true  the  acts  of  May  2,  1719,  Prov.  Law,  138,  and  12 
Geo.  II.  c.  112,  p.  172,  require  the  lists  or  rates  and  assess- 
ments to  be  under  the  hands  of  the  selectmen  and  assessors,  to 
be  committed  to  the  constable  to  collect,  with  a  warrant  there- 
upon, to  be  signed  by  the  selectmen,  or  town-clerk  by  their 
order.  These  acts  do  not  refer  to  lists  of  taxes  on  the  lands  of 
non-residents,  which  were  not  taxed  till  1777;  and  the  method 
of  assessing  as  well  as  collecting  taxes  on  this  species  of  prop- 

(a)  The  Acts,  iblio  ed.  333,  374,  li.  B.  103,  are  not  material  in  this 
action. 


MAY   TERM,  1804.  67 


Harris  v.  Willard. 


erty  seems  to  be  wholly  contained  in  the  acts  of  that  and  the 
subsequent  years. 

But,  if  it  should  be  thought  that  in  1787  and  1788  the  lists 
must  be  under  the  hands  of  the  selectmen,  is  not  their  signa- 
ture to  the  warrant  accompanying  the  list  sufficient  ?  ^ 

In  Harper  v.  Meloon,  in  error,  Strafford,  February  Term,  1803, 
3  Manuscript  Reports,  115,  it  was  determined  that,  under  the 
act  of  June  21,  1797,  ed.  1797,  496,  which  required  the  party 
making  the  demand  to  be  submitted  to  make  out  a  particular 
statement  thereof,  under  his  hand,  in  writing,  and  to  lodge  the 
same  with  the  justice,  &c.,  it  was  a  sufficient  signing  if  the 
demand  was  included  in  the  body  of  the  submission  which  was 
signed,  as  the  act  required,  by  both  parties.^  So  in  the  case  of 
wills,  though  the  act  requires  signing,  it  is  held  that  if  the  will 
be  written  by  the  testator,  it  is  sufficient. 

II.  With  regard  to  the  second  defect  stated,  —  namely,  that 
the  non-resident  lands  were  neither  assessed  to  the  present 
owner  nor  to  the  original  proprietor,  —  the  duty  of  the  select- 
men seems  to  be  of  a  judicial  nature.  Who  is  the  present 
owner  of  a  particular  piece  of  land,  and  who  was  the  original 
proprietor,  are  questions  about  which  courts  of  law  are  daily 
employed.  Would  it  not  be  thought  unreasonable  that  courts 
should  be  answerable  for  their  decisions  ?  The  same  question 
is  differently  decided  at  different  Terms.  This  part  of  the 
statute  must  have  a  reasonable  construction  put  upon  it. 
1  Rob.  Adm.  221.  On  the  one  hand,  we  must  not  weaken  the 
effect  of  the  law  on  this  subject  by  too  great  tenderness  to 
particular  hardships  :  but  cases  of  unavoidable  accident,  invin- 
cible necessity,  or  the  like,  —  cases  where  the  party  could  not 
act  otherwise  than  he  did,  or  has  acted  at  least  for  the  best, — 
must  be  considered  in  all  laws.  All  statutes  must  be  subject 
to  considerations  of  rational  equity.  Laws  which  would  not 
admit  of  this,  which  would  not  admit  of  the  exercise  of  a  fair 
discretion  under  difficulties,  would  do  more  hurt  than  good  ; 
they  would  not  be  framed  for  human  societies.  With  these 
rules  of  interpretation  for  our  guide,  —  and  they  are  conceived 

1   See  Bailey  v.  Ackennan,  1874,  54  N.  H.  5'27. 
■^  But  see  Smith  v.  Kimball,  IdlT,  1  N.  H.  72. 


68  CHESHIRE. 


Harris  v.  Willard. 


to  be  legal  ones,  —  what  is  the  meaning  of  the  clause  in  our 
statute  which  makes  it  the  duty  of  the  selectmen  to  assess  non- 
resident lands  to  the  present  owner,  if  known ;  if  not,  to  the 
original  proprietor?  The  meaning  is  only  that  the  selectmen 
shall  use  their  best  endeavors  to  ascertain  the  one  and  the 
other.  To  say  that  they  are  bound  at  all  events  to  judge 
right  would  lead  to  the  greatest  injustice.  Suppose  the 
selectmen  to  witness  a  conveyance  from  a  person  considered  as 
owner,  —  for  twenty  years  in  possession,  no  claim  of  title  by  any 
other  person,  —  and  the  same  day  assess  him  [the  grantee?]  as 
present  owner.  It  might  turn  out  that  the  seller  was  not  the 
proprietor.  This  deed  may  be  adjudged  fraudulent  as  against 
creditors.  It  is  requiring  an  impossibility,  to  require  absolute 
certainty  in  a  case  like  this.  It  is  not  necessary.  The  only  use 
in  naming  the  owner  —  for  the  tax  is  on  the  land  —  is  to  give 
notice  ;  and  to  name  the  reputed  owner  is  even  better  than  to 
name  the  true  owner  in  some  cases.  With  respect  to  the 
other  alternative,  that  of  taxing  to  the  original  proprietor, 
the  difficulty  is  the  same  in  kind,  though  not  so  great  in  de- 
gree. Suppose  mistake  in  copy  of  charter.  Suppose  a  case 
which  has  often  occurred,  —  two  grants.  Are  the  selectmen 
bound  to  decide  which  is  good  in  law? 

The  legislature  were  aware  of  the  difficulty,  and  have  since 
endeavored  to  apply  a  remedy,  (a) 

In  discharging  this  part  of  their  duty,  as  every  other,  select- 
men [are]  not  [bound]  to  judge  right  at  all  events,  but  to  act 
according  to  their  best  discretion.  It  does  not  appear  in  this 
case  that  they  have  acted  otherwise.  If  tliere  is  any  possible 
case  where  neither  the  names  of  the  present  owner  and  the  orig- 
inal proprietor  could  not  [?J  be  known,  we  are  at  liberty  to 
presume  this  was  such  a  case  ;  ^  and  all  the  selectmen  could  do 

(a)  See  Revised  Laws,  ed.  1792,  188,  act  of  Dec.  28,  1791.  The  act 
of  Dec.  10,  1796,  ed.  1797,  452,  declares  that,  if  the  owner  and  original 
proprietor  be  unknown,  then  the  quantity  of  the  land,  the  number  of  the 
range,  and  lot,  if  lotted,  —  otherwise  such  description  as  the  land  is  usually 
known  by  —  shall  be  deemed  sufficient. 

1  See  Cardigan  v.  Page,  1833,  6  N.  H.  182;  Smith  v.  Messer,  1845,  17 
N.  H.  420. 


MAY   TERM,  1804.  60 


Harris  v.  Willard. 


was  to  give  such  description  of  the  land  taxed  as  it  was  usu- 
ally known  by.  If  the  defendants  are  answerable  in  this  case, 
then  selectnoen  are  liable  for  every  mistake  or  error  in  judg- 
ment they  may  commit  in  the  execution  of  their  office.  If 
this  be  the  case,  I  say  with  Mr.  Justice  Powell,  in  Ashbij  v. 
White,  it  will  be  dangerous  to  undertake  an  office  of  this 
nature.  It  will  effectually  deter  men  from  executing  public 
offices,  and  especially  this  necessary  one.  Ashby  v.  White, 
2  Ld.  Raym.  949  ;  3  Ld.  Raym.  323  ;  Co.  Litt.  81  5,  n.  2. 

In  the  case  just  referred  to  {Ashbt/  v.  White),  which  was  for 
refusing  the  plaintiff's  vote  for  members  of  Parliament,  the 
declaration  stated  that  the  defendants,  constables  of  the 
borough  and  presiding  officers  at  the  election  for  members  of 
Parliament,  well  knowing  the  plaintiff's  right  to  vote,  but 
contriving  fraudulently  and  maliciously,  intending  to  hinder 
and  deprive  him  of  his  privilege,  did  hinder  and  obstruct,  &c. 
In  Earman  v.  Tappenden,  1  East,  555,  it  was  determined  that 
an  action  does  not  lie  against  individuals  for  acts  erroneously 
done  by  them  in  a  corporate  capacity,  from  which  detriment 
happens  to  the  plaintiff,  —  at  least  not  without  proof  of  malice. 
The  action  was  against  officers  and  members  of  a  corporation 
for  disfranchising  the  plaintiff,  whereby  he  lost  certain  profits 
of  his  office,  &c.  [It  was  held  that]  no  action  lies  against  a 
corporator  for  mere  mistake  or  error  in  judgment.  Here  was 
no  malice.  Wilfully  and  maliciously  disfranchising  may  per- 
haps be  sufficient  ground  of  action. 

Dretve  v.  Coulton,  il^fai/or  o/ *S'a/«a6A,  for  wrongfully  hindering 
the  plaintiff  from  voting  for  member  of  Parliament.  1  East, 
563,  n.  It  must  be  charged  substantially  that  defendant  acted 
maliciously  ;  acting  wrong  knowingly  is  equivalent.  In  Ashhy 
V.  White,  the  House  of  Lords  held  there  was  implied  malice, 
which  was  sufficient.  Justice  Buller,  N.  P.  64,  lays  it  down 
thus,  that  an  action  lies  for  a  wilful  misbehavior  in  a  minis- 
terial officer,  by  which  a  party  is  damnified,  —  "wilful"  means, 
according  to  Mr.  Justice  Wilson,  contrary  to  a  man's  own 
conviction. 

Where  an  officer  is  compellable  to  act,  there  are  few  cases 
where  he  is  liable  where  he  acts  according  to  the  best  of  his 


70  CHESHIRE. 


Harris  v.  Willard. 


judgment.  It  is  otherwise  where  the  officer  has  an  option 
whether  he  will  act  or  not.  A  revenue  officer  is  a  mere  vol- 
unteer ;  therefore  liable  for  mistakes.  But  it  is  otherwise 
with  magistrates,  (a) 

The  principle  upon  which  it  is  attempted  to  found  the  pres- 
ent action  is,  that  every  person  undertaking  any  office  is  bound 
to  discharge  its  duties  with  integrity,  diligence,  and  skill. 
3  Blackst.  165.  (ft) 

All  men  in  office  are  answerable,  but  in  different  degrees. 
Some  ministerial  officers  acting  for  fees  or  reward  are  answera- 
ble for  the  smallest  neglect,  and,  in  some  cases,  for  a  mere  mis- 
take ;  as  sheriffs,  registers  of  deeds,  revenue  officers,  &c.  Some 
—  and  this  is  the  case  wherever  the  office  is  judicial,  or  of  a 
judicial  nature  —  are  only  answerable  for  fraud,  acts  proceed- 
ing from  an  evil  design. 

Ministerial  officers,  and  others,  perhaps,  are  liable  for  their 
acts,  where  they  are  guilty  of  excess  of  jurisdiction.  4  T.  R. 
796. 

The  office  of  selectmen  seems  to  be  partly  ministerial  and 
partl}^  of  a  judicial  nature.  It  is  compulsory.  [N.  H.  Laws], 
ed.  1805,  196,  197.  It  can  scarcely  be  said  that  they  act  for 
fees  or  reward.  They  are  therefore  liable  only  for  wilful  mis- 
behavior ;  for  fraudulent  and  malicious  acts ;  and  perhaps,  as 
it  respects  the  town,  for  gross  negligence,  —  not  for  mistakes  or 
mere  error  in  judgment ;  not  for  ignorance.  Others  undertake 
to  judge  of  their  knowledge  and  qualifications.  They  are 
only  to  do  the  best  they  can.^ 

(a)  Where  the  judgment  or  opinion  of  an  officer  is  by  law  to  be  his 
guide,  he  is  not  answerable,  unless  for  wilful  misconduct.  2  Caines, 
315. 

(b)  All  men  in  office  are  amenable  to  the  law  for  every  part  of  their 
official  conduct,  and  obnoxious  to  punishment  when  convicted  of  not  hav- 
ing acted  when  they  ought  to  act,  of  not  having  acted  faithfully.  Rex  v. 
Bemhridge,  5  I'ol.  Mag.  15;  Noianda,  15,  17. 

^  Compare  Waldron  v.  Berry,  1871,  51  N.  II.  136,  with  Henry  v.  Sar- 
geant,  1813,  13  N.  H   321,  and  Walker  v.  Cochran,  1835,  8  N.  H.  106. 

See  also  Slate  v.  Smith,  1846,  18  N.  H  91  ;  and  in.structions  to  jury  in 
Tyler  v.  Flanders,  1873-187G,  57  N.  H.  G18,  620. 


MAY   TERM,  1804.  71 

Harris  v.  Willard. 

This  is  the  first  action  of  the  kind  that  is  recollected  to 
have  been  brought  in  this  State  ;  and  yet,  if  it  lies,  the  occa- 
sions for  bringing  it  have  been  many.  The  errors  of  select- 
men have  been  many.  Individuals  and  the  public  have  been 
injured  thereby.  We  have  no  authorities,  no  decided  cases  to 
guide  us.  This  is  not  conclusive  against  the  action,  but  it 
ought  to  lead  us  to  be  cautious  how  we  tread  where  there  are 
no  f()otstej)s  to  point  out  the  way  ;  and  this  caution  is  the 
more  necessary  as  our  decision  now  will  be  a  precedent  for 
future  cases  similarly  circumstanced. 

It  is  a  maxim  of  law,  Quod  inconveniens  est  non  licitum  est ; 
and  this  maxim  is  wise  and  good,  when  applied  to  new  actions 
or  undecided  points.  Where  it  is  clear  upon  principles  or 
judicial  decisions  that  an  action  or  defence  may  be  main- 
tained, the  inconvenience  will  not  avail.  Here  the  law  cannot 
be  said  to  be  very  clear  on  the  part  of  the  plaintiff.  The  in- 
conveniences of  sustaining  this  action  are  many.  No  prudent 
man  would  act  in  the  office  of  selectman  where  he  must  act  in 
every  case  at  his  peril  ;  where  he  must  not  only  judge  right 
on  every  question  of  law,  but  where  his  judgment  must  coin- 
cide with  judges  and  jurors  examining  the  same  point  forty 
years  afterwards.  No  tax  could  be  collected.  The  laws  on 
this  subject  are  very  loosely  penned  ;  oftentimes  they  were 
not  distributed  seasonably.  Between  November,  1777,  and 
January,  1792,  —  less  than  fifteen  years, — fifteen  acts  have 
been  made ;  five  new  systems,  each  different  from  the  other, 
have  been  in  operation  within  that  period.  Gentlemen  of  the 
profession  will  have  the  candor  to  acknowledge  that  they  have 
no  small  difficulty  in  construing  these  laws.  Is  it  reasonable 
to  supj)0se  that  selectmen  should  never  err? 

If  this  action  be  maintainable,  it  is  not  extravagant  to  say 
that  damages  may  be  recovered,  exceeding  in  amount  the 
property  of  all  the  selectmen  in  the  State  for  the  last  twenty- 
five  years. ^     Ten  thousand  actions  might  instantly  be  brought ; 

'  In  the  cabsence  of  a  vote  to  indemnify,  a  selectman  cannot  maintain 
an  action  against  a  town  to  recover  indemnity  for  the  consequences  of  as- 
sessing a  tax  for  money  voted  by  the  town  to  be  raised  for  an  illegal  pur- 
pose.     Wadsioorth  v.  Henniker,  1857,  35  N.  II.  189. 


72  CHESHIRE. 


Harris  v.  Willard. 


and,  if  maintainable,  purchasers  at  vendue  will   have  no  in- 
ducement to  compromise  with  the  original  proprietors. 

It  is  much  more  reasonable  to  say  that  the  purchaser,  who 
may,  if  he  pleases,  examine  the  doings  of  the  selectmen  before 
he  purchases,  shall  judge  of  them  and  run  all  risks,  except  in 
those  cases  where  they  do  wrong  wilfully,  maliciously,  and 
fraudulently. 

It  only  remains  to  examine  the  second  question,  whether, 
on  the  supposition  that  an  action  can  be  maintained  against 
selectmen  for  defaults  like  these,  the  present  plaintiff  can 
maintain  such  action. 

Abiah  Walker  attempted  to  sell  to  Zenas  Fairbanks  the 
land  in  question.  The  land  did  not  pass.  Could  he  sell  his 
remedy  against  the  persons  through  whose  default  the  land 
did  not  pass  ?  He  may  enter  into  covenants  with  Zenas  Fair- 
banks, which  the  latter  may  assign  to  Levi  Harris,  the  plaintiff. 
And,  for  the  same  reason,  he  may  assign  to  Zenas  Fairbanks 
the  covenants  made  with  him  by  the  collector.  Because  the 
rule  of  law  is  that  covenants  pass  with  the  land.  But  was  it 
ever  heard  that  an  action  of  the  case  could  be  assigned  ? 

A.  sells  the  horse  of  a  stranger  to  B.,  who  sells  to  C.  The 
stranger  recovers  his  horse  of  C.  Can  the  latter  sue  A.  for 
the  fraud  in  the  sale  ?     No  such  action  was  ever  brought. 

1  Senator,  312,  313.  Livesay,  Hargrave,  &  Co.  made  a  bill 
of  exchange  payable  to  John  White,  a  fictitious  person,  or  his 
order,  and  caused  the  name  of  John  White  to  be  indorsed,  and 
the  indorsement  filled  up  with  an  order  to  pay  the  contents  to 
them,  L.,  IT,  &  Co.,  or  order.  Afterwards  L.,  H.,  &  Co.,  by 
their  agent.  Barber,  sold  the  bill  for  a  full  and  valuable  con- 
sideration to  Minet  &  Fector,  and  indorsed  it  to  them.  Gib- 
son &  Johnson,  on  whom  the  bill  was  drawn,  knowing  that 
there  was  no  such  person  as  John  White,  accepted.  Actioji 
by  Minet  &  Fector  against  Gibson  &  Johnson  as  acceptors. 
It  was  said  in  the  course  of  the  argument  that  an  action  might 
be  maintained  against  L.,  H.,  &  Co.,  the  drawers,  for  a  fraud, 
giving  tiie  bill  the  appearance  of  remedy  against  John  White, 
which  it  had   not  in  reality.     But   Lord  Kenyon  said    that 


MAY  TERM,  1804.  78 


Harris  v.  Willard. 


this  right  of  redress  could  not  be  transferred.  That  is,  the 
second  indorsee  cannot  maintain  an  action  for  a  fraud  in  the 
drawer,  though  drawee  and  first  indorser  doubtless  might. ^ 

Judgment  for  defendants.'^ 

1  Minel  V.  Gibson  is  also  reported  in  3  T.  R.  481 ;  and  in  1  H.  Bl.  569. 

2  In  Hamilton  v.  Valiant,  1868,  30  Md.  139,  it  is  held,  that  a  purchaser  at 
a  tax  sale,  whose  title  proves  invalid  in  consequence  of  an  omission  by  the 
collector,  cannot  maintain  an  action  against  the  collector.  But  see  Black- 
well  on  Tax  Titles,  44-1. 

A  public  officer  executing  a  tax  deed,  with  the  covenants  prescribed  by 
statute,  is  not  personally  liable  on  those  covenants,  even  when  the  title 
fjiils  on  account  of  errors  in  his  own  proceedings.  Stephenson  \.  Weeks, 
1850,  22  N.  H.  257.  Woods,  J.,  264,  "  If  an  injury  be  sustained  in  the 
case  of  a  collector  or  a  sheriff,  in  discharging  the  duties  of  a  collector  of 
taxes,  as  is  alleged  in  the  present  case,  redress  must  be  sought  in  some 
other  mode  than  by  force  of  covenants  merely  official,  and  entered  into 
in  accordance  with,  and  by  force  of,  a  statute,  and  constituting  and  in- 
tended only  as  a  part  of  the  form  of  the  conveyance  prescribed  by  the 
legislature  to  be  made  in  pursuance  of  a  tax  sale." 

In  Maine  and  Massachusetts,  the  purchaser  of  an  invalid  tax  title  cannot 
maintain  an  action  against  the  county  or  town  to  recover  the  considera- 
tion. Emerson  v.  County  of  Washington,  1832,  9  Greenl.  88  (overruling  a 
dictum  in  Joy  v.  County  of  Oxford,  1824,  3  Greenl.  131,  134)  ;  Shepley,  J., 
in  Treat  v.  Orono,  1846,  26  Me.  217;  Shepley,  C.  J.,  in  Packard  v.  New 
Limerick,  1852,  34  Me.  266;  269,  270;  Lynde  v.  Melrose,  1865,  10  Allen,  49. 
See  also  Campbell,  J.,  in  Rice  v.  Auditor- General,  1874,  30  Mich.  12,  13; 
Gregory,  C.  J.,  in  City  of  Indianapolis  v.  Langsdale,  1868,  29  Ind.  486,  488. 
In  Corbin  v.  City  of  Davenport,  1859,  9  Iowa,  239,  the  purchaser  recov- 
ered back  the  considerfttion ;  the  tax  title  having  proved  invalid,  for  the 
reason  that  the  owner  had  paid  the  tax  before  the  sale.  The  Uability  of 
the  city  to  refund  was  admitted;  and  the  only  point  in  dispute  related  to 
interest.  Whether  the  action  was  brought  under  a  statute  is  not  stated. 
See  Code  of  Iowa,  1851,  §  509;  Iowa  Laws,  Revision  of  1860,  §  785  ;  pro- 
viding that  the  purchaser  shall  be  held  harmless  by  the  county  in  certain 
cases. 

In  Phillips  V.  City  of  Hudson,  1864,  31  N.  J.  L.  (2  Vroom)  ,  143,  there 
had  been  a  tax  sale  of  land  for  a  term  of  ten  thousand  years ;  the  money 
had  been  paid  by  the  purchaser,  and  a  "  declaration  of  sale  "  delivered  to 
him.  The  law  gave  the  owner  two  years  to  redeem;  the  purchaser's  terra 
not  to  commence,  nor  the  purchaser  to  have  right  of  possession,  until  after 
the  expiration  of  the  two  years.  It  also  provided  that  the  common  coun- 
cil should  advertise  sixty  days'  notice  of  the  expiration  of  the  time  of  re- 
demption.    The  council  neglected  to  give  this  notice.      Held,  that  the 


74  GRAFTON. 


Melven  v.  Darling. 


GRAFTON,    NOVEMBER   TERM,    1803. 


Isaac  Melven  v.  Daniel  Darling   (June,  1802,   James 
Gorman  admitted  Defendunt), 

An  unsatisfied  judi^ment  against  a  trustee  in  foreign  attachment,  for  tiie  amount 
of  a  debt  secured  by  mortgage,  is  a  bar  to  a  subsequent  action  by  the  principal 
defendant  against  tlie  trustee  upon  the  mortgage. 

Ejectment  ^  for  a  parcel  of  land  in  Plymouth,  eighteen 
acres. 

buyer  at  the  tax  sale  could  recover  back  the  purchase-money.  (Beasley, 
C.  J.,  concurred  only  on  the  ground  "  that,  until  the  advertisement  was 
duly  made,  the  matter  remained  injieri.''^  "  The  rule  of  caveat  emptor  does 
not  apply  until  the  transaction  is  complete."  p.  165.)  See  also  Dillon,  J., 
in  Mclnerny  v.  Reed,  1867,  23  Iowa,  410,  416,  417;  Paine,  J.,  in  Norton 
V.  Supervisors  of  Rock  County,  1861,  13  Wis.  611,  613,  614. 

In  Gardner  v.  Mayor  of  Troy,  1857,  26  Barb.  423,  the  plaintiff  was  not 
a  purchaser  at  the  tax  sale,  but  in  effect  a  subsequent  purchaser  from  the 
city. 

The  statutes  of  some  States  give  a  remedy  to  the  purchaser  of  an  in- 
valid tax  title  in  certain  cases.  See  Saulters  v.  Town  of  Victory,  1862,  35 
Vt.  351;  Morton  v.  Shortridge,  1872,  38  Ind.  492;  Rice  v.  Auditor-General, 
1874,  30  Mich.  12;  Warner  v.  Supervisors  of  Outagamie  County,  1865,  19 
Wis.  611;  Rev.  Stat,  of  Ohio,  2  Swan  &  Critchf.  1472,  1473;  Lamborn  v. 
County  Commissioners  of  Dixon,  Sup.  Ct.  U.  S.  Oct.  1877,  cited  in  17  Alb. 
Law  Jour.  252,  253. 

As  to  the  right  of  a  sub-vendee  to  sue,  see  Paine,  J.,  in  Norton  v.  Su- 
pervisors of  Rock  County,  ubi  sup.  614. 

1  The  record  shows  that  the  action,  though  styled  "a  plea  of  eject- 
ment," was  in  substance  a  writ  of  entry.  This  is  probably  the  case  with 
all  the  so-called  "actions  of  ejectment"  reported  in  the  present  volume. 
As  to  this  nomenclature,  and  as  to  the  forms  of  actions  for  the  recovery  of 
land  which  have  at  different  times  been  used  in  this  State,  see  Wilcox,  J., 
in  Potter  v.  Baker,  1848,  19  N.  H.  166-168  ;  Sargent,  J.,  in  Woodbury 
V.  Woodbury,  1866,  47  N.  H.  11,  2i,  and  in  Pierce  v.  Jaquith,  1868,  48 
N.  H.  231,  234  ;  Pritchard  v.  Atkinson,  1827,  4  N.  H.  140,  141;  Perley, 
C.  J.,  in  Dexter  v.  Sullivan,  1857,  34  N.  H.  478,  481. 


NOVEMBER  TERM,  1803.  75 


Melven  v.  Darling. 


The  plaintiff  declared  that  James  Gorman  was  seised  April 
15,  1795,  and  conveyed  to  plaintiff  to  hold  in  mortgage. 

Plea :  not  guilty. 

The  condition  of  the  mortgage  was  to  pay  $110  in  thirty 
months,  with  interest. 

The  defence  was  payment.  Melven's  creditors  attached 
this  debt  due  from  Gorman  ;  and  he  has  paid,  or  will  be 
compelled  to  pay,  the  whole  debt,  principal  and  interest. 
There  were  several  attaching  creditors.  Actual  payment 
was  made  before  this  suit  commenced,  except  in  one  instance. 
In  that,  judgment  was  rendered  against  Gorman  as  trustee  ; 
but  it  was  not  satisfied  at  the  trial  (at  June  Term,  1803). 
Some  doubt  ari.sing  whether  this  latter  sum  could  be  allowed, 
the  cause  was  taken  from  the  jury  by  consent  of  parties  ;  and 
it  was  farther  agreed  that  the  facts,  as  then  proved  and  here 
stated,  should  be  considered  as  a  case  stated  for  the  opinion 
of  the  Court. 

Porter,  for  plaintiff. 
Thompson,  for  defendant. 

By  the  Court.  I.  Payment  by  the  mortgagor,  under  our 
statute,  before  the  commencement  of  the  suit  on  the  mortgage, 
though  after  the  time  limited  for  payment,  is  a  good  defence. 
It  was  so  determined  in  the  Circuit  Court  of  the  United  States, 
New  Hampshire  District,  Nov.  1801,  Inches  v.  Warner,  Man- 
uscript Report. 

And  there  can  be  no  question  but  that  a  debt  secured  by  mort- 
gage, and  the  evidence  of  the  debt  not  a  negotiable  note,  and 
not  assigned  so  as  to  pass  the  property  in  equity,  is  attachable. 

II.  But  can  the  debtor  avail  himself,  in  an  action  brought 
by  his  creditor,  of  a  judgment  against  him  as  garnishee,  not 
executed,  or  where  the  money  has  not  yet  been  paid  ? 

It  is  clear  that  service  on  the  trustee  makes  him  liable  to 
the  plaintiff  in  foreign  attachment  for  what  he,  the  trustee, 
then  owes  the  principal  debtor.  And  actual  payment  to  his 
creditor  will  not  relieve  him  from  that  liability.     Laws,  ed. 


76  GRAFTON. 


Melven  v.  Darling. 


1805,  143,  144.  The  principal  debtor  may  discharge  the 
trustee  at  any  time  after  attachment  of  the  debt,  even  after 
judgment  and  execution  issued,  by  payment  of  the  debt  so 
attached  and  condemned. 

The  statute,  p.  146,  enacts  that  the  goods,  effects,  or 
credits  of  the  principal  debtor,  so  taken  as  aforesaid,  by 
process  and  judgment  of  law,  out  of  the  hands  of  the  trustee, 
shall  discharge  him  against  the  action  or  demand  of  his 
principal  or  creditor.  Attachment  before  judgment  is  cer- 
tainly a  good  defence  for  the  trustee  against  his  creditor's 
action,  as  long  as  it  remains  in  force  and  undischarged.  It 
is  a  good  temporary  bar.  (a)  If  the  attachment  be  dis- 
charged at  any  time  before  judgment,  for  example  by  the 
principal  debtor's  paying  the  debt,  he  is  deprived  of  his  bar  ; 
but  ought  to  be  allowed  to  deduct  his  costs  in  the  foreign 
attachment,  and  not  to  be  charged  with  costs  in  the  suit  of 
his  creditor.  After  judgment  against  the  principal  debtor 
in  the  foreign  attachment,  and  against  the  trustee,  he  can 
make  no  defence  :  he  is  bound  at  all  events  to  pay.  The 
plaintiff  in  foreign  attachment  has  become  his  creditor,  his 
judgment  creditor.  (5)  It  is  true  the  plaintiff  may  also 
resort  to  his  debtor  for  satisfaction.  If  he  [the  principal 
defendant]    does    actually    satisfy,    though    after   judgment 

(a)  2  G.  Bacon,  261.  Debt  on  bond,  penalty  £100,  conditioned  for  the 
payment  of  £50  at  a  certain  day.  Plea  :  attached  (by  custom  of  London) 
before  the  day  limited  for  payment,  and  paid  after  the  day,  on  scire  facias . 
This  is  a  good  bar  of  the  action  for  the  penalty  (when  the  law  was  that 
payment  could  not  be  pleaded  in  bar  at  law,  unless  made  at  the  day), 
because,  the  attachment  being  made  before  the  day  of  payment,  it  became 
a  debt  to  the  creditor,  and  the  obhgee  could  take  no  advantage  of  a  breach 
of  the  condition  afterwards.  Here  the  attachment  was  deemed  equivalent 
to  payment;  and  so  it  ought,  as  between  the  trustee  and  principal  debtor, 
until  it  is  removed.  The  liability  of  the  trustee  to  pay  under  the  foreign 
attaohraent  exempted  him  from  the  forfeiture  of  his  obligation.  So  here, 
from  forfeiture  of  the  mortgage. 

(b)  1  Salk.  280.  Condemnation  in  foreign  attachment  may  be  given  in 
evidence,  if  before  suit  commenced  by  the  principal  against  the  garnishee. 
The  property  is  altered. 

Pleadable  in  abatement.     5  Johns.  101. 


NOVEMBER   TERM,   1803.  77 

Melven  v.  Darling. 

against  the  trustee,  then  the  trustee  is  deprived  of  his  bar, 
and  entitled  only  to  his  costs.  If  the  plaintiff  in  foreign 
attachment,  after  obtaining  satisfaction  of  the  principal  debtor, 
attempt  to  enforce  the  execution  against  the  trustee,  he  may 
be  relieved  by  audita  querela.  From  this  view  of  the  case  it 
seems  very  clear  that  nothing  can  hinder  the  trustee  from 
availing  himself  in  evidence,  or  plea  in  bar,  of  a  judgment 
acrainst  him,  but  that  which  does  not  exist  in  this  case, 
namely,  payment  by  the  principal  debtor.  And  if  this  should 
be  allowed  to  be  a  perpetual  bar,  it  imposes  no  hardship  on 
the  trustee  ;  ^  for  he  may  prevent  it  by  paying  the  debt.  This 
construction  seems  warranted  by  the  letter,  as  well  as  spirit, 
of  the  statute.  The  effects  or  credits  of  the  principal  debtor 
are  "  taken  "  by  process  and  judgment  of  law. 

It  is  conceived  that  what  is  laid  down  in  2  G.  Bacon,  262, 
from  Rolle's  Abridgment,  is  not  inconsistent  with  what  has 
been  now  laid  down.     If  A.  sues  B.  in  London,  and  C.  is 
indebted  to  B.  in  the  same  sum,  and  C.  is  condemned  there 
to  A.  and  judgment  given  against  him  ;  yet,  if  no  execution 
be  sued  against  C,  A.  may   have  execution  against  B.,  his 
principal  debtor  ;    and   B.  may  sue  C.  for  his  debt,  notwith- 
standing  the    unexecuted  judgment.     The   meaning   may   be 
only  that  B.  may  sue  C.  for  his  debt  where,  from  the  usage  of 
the  court,  the  unexecuted  judgment  against  C,  the  garnishee, 
cannot   be    enforced  by   execution    against    C. ;    and    this  is 
reasonable  ;  and  the  same  thing  would  be  determined  under 
our  act.^     Perhaps,  according  to  the  usage  of  the  courts  in 
England,  the  plaintiff  or  creditor  in  foreign  attachment  is  not 
allowed  to  have  execution  at  the  same  time  against  two  dis- 
tinct persons  for  the  same  debt ;  he  might  have  against  either, 
but  not  against  both.     Probably  this  was  the  old  doctrine. 
In    modern    times    the   usage  is  different,  as  in  the   case   of 

*  The  context  seems  to  require  the  substitution  of  "  principal  debtor  " 
for  "  trustee." 

2  If  the  judgment  against  the  trustee  in  foreign  attachment  has,  from 
lapse  of  time,  or  other  cause,  ceased  to  be  enforceable,  it  furnishes  no  de- 
fence to  the  suit  of  the  principal  defendant  against  the  trustee.  Flower 
V.  Parker,  1823,  3  Mason,  247;  Fuller  v.  Rice,  1855,  4  Gray,  343. 


GRAFTON. 


Melven  v.  Darling. 


judgments  and  executions   against  the  different  parties  to  a 
promissory  note  or  hill  of  exchange,  (a) 

Upon  this  opinion  being  intimated,  the  plaintiff'  became  7ion- 
miit,  at  November  Term,  1808,  or  June  Term,  1804 ;  it  is 
believed  at  the  latter.^ 

(a)  After  service  on  trustee  in  foreign  attachment,  if  sued  by  his  cred- 
itor, he  may  plead  this  as  a  temporary  bar;  after  judgment,  as  a  perpetual 
bar.  In  both  cases  the  plea  may  be  avoided  by  tlie  phiintiff  sliowing  collu- 
sion between  trustee  and  plaintitf  in  the  foreign  attachment;  and  in  the 
latter,  by  showing  payment  of  the  debt,  or  such  matter  as  shall  render  the 
judgment  unexecutable. 

In  1  Wms.  Saund.  67,  it  is  said  the  garnishee  shall  be  quit  against  the 
principal  debtor,  his  creditor,  after  execution  sued  out  by  the  2)laintifE  in 
foreign  attachment.  If  no  execution  be  sued  out,  the  plaintiff  may  go  on 
with  his  suit  against  the  principal  debtor,  and  the  latter  may  proceed 
against  his  debtor,  the  garnishee.  Semble,  that  in  such  case  the  proceed- 
ing by  foreign  attachment  is  abandoned. 

See  1  Com.  Dig.  Attachment,  E.  H.  425,  426. 

1  By  the  record  it  appears  that  there  was  a  verdict  for  the  defendants 
at  November  Terra,  lbO;i,  and  judgment  upon  it  at  the  same  Term. 
Present,  Wingatk,  J.,  Livermore,  J.,  Atkinson,  J. 

As  the  cause  had  been  taken  from  a  jury  at  the  previous  June  Term,  to 
settle  the  question  of  law,  it  is  probable  that  the  verdict  at  November 
Term  was  directed  by  the  Court  (upon  views  similar  to  the  above). 

The  existence  of  an  unsatisfied,  but  enforceable,  judgment  against  a 
trustee  in  a  process  of  foreign  attachment  will,  according  to  the  weight  of 
American  authority,  prevent  the  principal  defendant  from  obtaining  an 
execution  in  an  action  subsequently  prosecuted  by  him  against  the  trustee 
to  recover  the  same  debt;  the  trustee  is  not  to  be  exposed  to  two  execu- 
tions at  the  same  time  for  one  debt.  But  whether  such  judgment  operates 
as  a  practical  extinguishment  of  the  trustee's  indebtedness  to  the  principal 
defendant,  or  merely  furnishes  ground  for  staying  proceedings  or  execution 
against  the  trustee,  is  a  question  upon  which  there  is  more  difference  of 
opinion.  In  Maine,  Indiana,  Florida,  and  the  earlier  decisions  in  Massa- 
chusetts, the  unsatisfied  judgment  is  regarded  as  a  conclusive  and  final  bar 
to  an  action  against  the  trustee  by  the  principal  defendant.  Matthews  v. 
Houyhton,  1834,  11  Me.  (2  Fairf.),  377 ;  McAllister  v.  Brooks,  1842,  22  Me. 
80 ;  Tenney,  C.  J.,  in  Merrill  v.  Noble,  1858,  48  Me.  140,  146  (see,  how- 
ever, 4  Greenl.  435,  438;  and  18  Me.  332,  335)  ;  Covert  v.  Nelson,  1846,  8 
Blackf.  (Fnd.)  265;  King  v.  Vance,  1874,  46  Ind.  246;  tiessions  v.  Stevens, 
1847,  I  Fla.  233;  Perkins  v.  Parker,  1804,  1  Mass.  117;  Hull  v.  Blake, 
1816,  13  Mass.  153.  In  Stadler  v.  Parmlee,  1862,  14  Iowa,  175,  177,  it  is 
said  that  the  legal  effect  of  judgment  against  the  trustee  is  to  satisfy,  to 


NOVEMBER   TERM,   1803.  79 


Melven  v.  Darling. 


the  extent  thereof,  the  indebtedness  between  the  trustee  and  the  principal 
debtor,  and  therefore  the  judgment  entry  in  the  trustee  suit  need  not  in 
terms  express  such  satisfaction.  In  Illinois,  the  Court  hold  that  the  proper 
form  of  entering  judgment  in  foreign  attachment  is  in  the  name  of  the 
principal  debtor  as  the  plaintiff,  and  against  his  debtor,  the  trustee,  as  de- 
fendant. Towner  V.  George,  1870,  53  111.  IGS.  Farmer  v.  Simpson,  18.51, 
(3  Tex  303,  was  a  proceeding  to  enforce  a  vendor's  lien  against  a  vendee  who 
had  been  charged  in  foreign  attachment  as  the  vendor's  trustee.  It  was 
held,  that  the  decree  should  provide  that  the  proceeds  of  the  land  to  be 
sold  should  be  first  applied  to  the  payment  of  the  judgment  in  foreign  at- 
tachment. In  Westmoreland  v.  Miller,  1852,  8  Tex.  168,  it  was  held,  that 
a  trustee  against  whom  judgment  has  been  rendered  is  entitled,  when  sued 
by  the  principal  defendant,  to  have  the  trusteeing  creditor  made  a  party; 
the  Court  can  then  allow  and  give  effect  to  the  judgment,  or  perpetually 
enjoin  its  recovery  against  the  trustee.  In  Spicer  v.  Spicer,  1851,  23  Vt. 
678,  judgment  was  entered  in  the  suit  of  the  principal  defendant  against 
the  trustee;  but  execution  was  stayed  until  the  plaintiff  should  cause  the 
defendant  to  be  "  released  and  discharged  from  the  trustee  suit,"  in  which 
judgment  had  been  rendered  against  the  trustee.  In  Lowry  v.  Lumberman's 
Bank,  1841,2  Watts  &  S.  210,  214,  and  Iruine  v.  Lumberman's  Bank,  1841, 
2  Watts  &  S.  190,  208,  209,  it  was  held  that  the  trustee  cannot  plead  the 
unsatisfied  judgment  in  bar  to  a  suit  by  the  principal  defendant  ;  but  it 
was  said  that  "  it  would  be  competent  for  him  to  protect  himself  by  a  plea 
in  abatement."  In  Meriam  v.  Rundlett,  1833,  13  Pick.  511,  515,  516, 
Shaw,  C.  J.,  thought  that  an  unsatisfied  judgment  in  foreign  attachment 
ought  not  to  be  pleadable  in  bar  to  an  action  by  the  principal  defendant; 
but  that  the  judgment  might  be  good  ground  for  an  abatement  or  stay  of 
proceedings.  See  also  Hardin,  J.,  in  Coburn  v.  Currens,  1866,  1  Bush 
(Ky.),  242,  247;  Prescotl  v.  Hull,  1820,  17  Johns.  284. 

In  Burnham  v.  Folsom,  1832,  5  N.  H.  566  (overruled  by  Foster  v.  Dudley, 
1855,  30  N.  H.  463),  there  is  a  dictuju  of  Richardson,  C.  J.,  to  the  effect 
that  an  unsatisfied  judgment  in  foreign  attachment  against  the  trustee  is 
not  an  extinguishment  "  of  the  debt  of  the  principal  against  the  trustee." 
Compare  Gilchrist,  C.  J.,  in  Wilson  v.  Hanson,  1850,  20  N.  H.  375,  377, 
and  Bell,  J.,  in  Puffer  v.  Graves,  1853,  26  N.  II.  256,  258. 

In  Alabama  and  Georgia  (see  also,  in  Maryland,  Brown  v.  Somerville, 
1855,  8  Md.  444),  it  is  unqualifiedly  held  that  an  unsatisfied  judgment  in 
foreign  attachment  is  no  defence  to  a  suit  by  the  principal  defendant 
against  the  trustee.  Cook  v.  Field,  1841,  3  Ala.  53;  Brannon  v.  Noble, 
1850,  8  Ga.  549.  In  both  States,  the  pendency  of  a  foreign  attachment  is 
considered  good  ground  for  staying  execution  in  a  suit  by  the  principal  de- 
fendant against  the  trustee:  Crawford  v.  Slade,  1846,  9  Ala.  887;  Shealy 
v.  Toole,  1876,  56  Ga.  210,  212;  but  it  seems  to  be  argued  that,  after  judg- 
ment has  been  rendered  in  the  foreign  attachment,  the  trustee  is  no  longer 
in  need  of  protection  from  the   Court  against  the  principal  defendant. 


80  ROCKINGHAM. 


Lord  V.  Hobbes. 


ROCKINGHAM,  SEPTEMBER  TERM,  1804. 


Isaac  Lokd   v.  David  Hobbes   (Moses  Leavit,   Defend- 
ant, died  pending  Suit). 

II.  gave  bond  with  surety,  conditioned  to  pay  L.  what  should  be  awarded  on  sub- 
mission, by  rule  of  court,  of  actions  tlien  pending.  An  award  was  made  in 
favor  of  L.,  judgment  was  rendered  on  it,  and  II.  was  committed  to  jail  on 
the  execution. 

In  an  action  on  tlie  bond  against  H.,  after  the  death  of  the  surety,  it  was  held,  that 
the  condition  of  the  bond  was  not  satisfied  by  the  commitment  of  li.,  nor  by  the 
fact  that,  after  commitment,  H.  gave  bond  to  the  sheriff  for  the  liberty  of  the 
jail-yard. 

This  was  debt  on  bond  with  condition  to  pay  what  should 
be  awarded  on  special  submission  of  certain  actions  then  pend- 

because  he  can  then  discharge  himself  from  the  principal  defendant's  suit 
by  paying  the  judgment  in  foreign  attachment.  See  Ormond,  J.,  in 
Crawford  v.  Clule,  18M,  7  Ala.  157,  159.  This  argument  is  discussed  and 
pronounced  unsatisfactory  in  the  able  opinion  of  Kellogg,  J.,  in  Spicer 
V.  Spicer,  uhi  supra,  679,  680. 

It  is  supposed  that  in  England  an  unsatisfied  judgment  would  not  avail 
the  trustee.  But  the  English  authorities  on  this  question  hardly  seem  ap- 
plicable in  this  State.  Foreign  attachment  exists  there  only  in  a  few 
localities,  in  accordance  with  an  ancient  custom.  It  is  allowable  only  in 
the  case  of  absent  defendants  ;  the  ostensible  primary  purpose  being  to 
compel  the  appearance  of  the  principal  debtor.  It  is  looked  upon  with 
evident  disfavor  by  the  Courts,  and  defences  founded  on  it  must  be  brought 
strictly  within  the  letter  of  the  custom.  In  subsequent  suits  by  the  prin- 
cipal against  the  trustee,  it  is  said  that  it  is  not  enough  for  the  latter  to 
show  that  he  has  paid  the  judgment  rendered  in  the  foreign  attachment; 
he  must  show  that  the  payment  was  made  after  execution  issued.  Welter 
V.  Rucker,  1820,  1  Brod.  &  B.  491;  Ahujrath  v.  Hardy,  18^8,  4  Bing.  N.  C. 
782.  In  this  country  it  has  been  held  unnecessary  for  the  trustee  to  delay 
payment  until  it  has  been  demanded  by  force  of  an  execution.  Mills  v. 
titewarl,  1847,  12  Ala.  90;  Scott  v.  Coleman,  1824,  5  Litt.  (Ky.)  319.  See 
also  Troyer  v.  Schweizer,  1870,  15  Minn.  241  ;  Breio  v.  Towle,  1853,  27 
N.  II.  412.  (In  Massachusetts,  the  English  rule  has  been  adopted  by  the 
legislature.     See  Burnap  v.  Campbell,  1856,  6  Gray,  241.) 


SEPTEMBER   TERM,  1804.  81 


Lord  V.  Hobbes. 


ing  in  court  (the  submission  to  be  by  rule  of  court)  between 
plaintiff  and  the  defendant  Hobbes. 

After  oyer  of  the  bond  and  condition,  the  defendant 
Hobbes  (Leavit,  the  other  obligor,  died  since  the  commence- 
ment of  the  suit)  pleaded,  in  bar,  general  performance.  The 
plaintiff  replied  the  sul)mission  and  rejjort  made  in  fiivor  of 
plaintiff  for  a  certain  sum  ($4i^9.o7),  and  assigned,  for  breach, 
non-payment  of  that  sum.  The  defendant  rejoined  that  execution 
issued  on  judgments  entered  upon  that  report ;  that  Hobbes 
was  committed,  and  gave  bond  to  the  sheriff  for  the  liberty  of 
the  jail-yard,  which  bond  was  and  is  in  the  hands  of  plain- 
tiff, (a)     To  this  rejoinder  the  plaintiff  demurred  generally. 

There  was  a  second  plea  in  bar,  stating  the  report  or  award 
for  the  plaintiff  on  the  submission,  judgment  on  the  report, 
the  issuing  of  execution  on  the  judgment,  and  that  defendant 
was  committed  to  prison  on  that  execution.  To  this  there 
was  also  a  general  demurrer. 

The  Court  were  clearly  of  opinion  that  the  plaintiff  w^as 
entitled  to  recover.  By  the  submission,  under  a  rule  of  court, 
of  an  action  pending,  the  party  recovering  doubtless  has  his 
remedy  against  the  body  and  estate  of  his  debtor  upon  the 
execution  ;  the  demand  passes  into  judgment,  and  satisfaction 
may  be  obtained  as  in  other  cases.  The  plaintiff  has  pursued 
that  remedy  in  this  case,  and  has  either  the  body  in  execution 
or  a  bond  in  his  possession  which  was  made  to  the  sheriff  for 
the  liberty  of  the  prison-yard  in  lieu  of  the  body. 

Having  the  body  in  execution,  he  is  not  entitled  to  another 
execution  on  the  same  judgment,  that  he  may  take  the  defend- 
ant's estate  ;  ^  nor  can  he  maintain  debt  on  the  same  judgment, 
because  the  body  is  deemed  in  law  satisfaction. 

(a)  This  is  certainly  bad.  It  amounts  to  this :  "You  imprisoned  me 
for  tliis  debt;  by  collusion  with  the  sheriff  I  escaped  and  am  at  large  " 


1  The  creditor  may  now,  by  statute,  have  a  further  execution  against 
the  property  of  his  debtor,  while  he  has  the  debtor's  body  under  arrest 
for  the  same  debt.  Gen.  Laws,  c.  235,  §  11.  But  he  cannot  take  the 
property  upon  the  same  execution  upon  which  the  body  has  been  im- 
prisoned.    Morrison  v.  Morrison,  1869,  49  N.  H.  69. 

6 


82  ROCKINGHAM. 


Lord  V.  Hobbes. 


But  still  the  debt  is  not  yet  paid.  The  body  is  not  valuable 
satisfaction.  At  the  time  this  obligation  was  entered  into,  it 
was  lawful  and  binding.  The  defendant,  with  a  surety,  stipu- 
lates that  he  will  forfeit  a  certain  sum  if  he  do  not  pay  what 
shall  be  awarded  against  him,  or  that  he  will  pay  that  sum, 
whatever  it  may  be.  This  bond  was  probably  the  inducement 
for  the  plaintiff  to  enter  into  the  submission  ;  he  might  have 
attachment,  or  bail,  which  would  be  lost  by  the  submission  ; 
or  he  might  wish  to  secure  interest  from  the  time  of  judgment 
till  satisfaction  made.  If  this  bond  was  good  against  Leavit, 
the  surety,  it  must  also  be  good  against  Hobbes,  the  principal. 
The  bond  certainly  did  not  become  void  by  the  report  made, 
accepted,  a  judgment  rendered  on  it,  or  execution  issued.  (It 
was  forfeited  by  the  non-payment  on  demand,  i.  e.  by  the 
commencement  of  this  suit,  which  was  before  Hobbes  was 
committed.)  (a) 

Suppose  this  were  the  plea  of  Leavit  (and  if  it  would  not 
avail  Leavit,  it  will  not  avail  Hobbes),  The  amount  of  it  is  : 
"  I  engaged  to  pay  the  award  of  referees.  I  have  not  paid  it ; 
you  have  not  received  it ;  but  you  have  the  body  of  Hobbes  in 
execution."  This  is  no  satisfaction.  Nothing  will  discharge 
Leavit  but  actual  payment,  or,  perhaps,  consent  to  release 
Hobbes's  body,  which  presumes  payment.^ 

The  rule  that  taking  the  body  is  a  satisfaction  extends  only 
to  the  same  person  in  the  same  suit  or  judgment.  Esp.  196  ; 
1  T.  R.  557. 

(for  the  bond  mentioned  is  not  warranted  by  the  statute,  and  is  of  no 
avail  to  plaintiff)  ;  "  therefore  my  bond  in  which  I  engage  to  pay  you  the 
sum  awarded  is  not  forfeited:  this  is  equivalent  to  payment." 

(a)  Harris  v.  Clap,  1  Mass.  808,  shows  that  judgment  on  a  report 
does  not  vacate  the  bond  to  abide  the  award  of  referees.  There  the  suit 
was  on  the  bond ;  but  the  case  differs  from  this,  inasmuch  as  no  execu- 
tion appears  to  have  issued,  and  the  surety  was  alive  and  a  defendant. 

A  bond  may  be  given  for  the  payment  of  a  judgment.  Here  the  bond 
was  given  for  what  might  be  adjudged. 

1  At  common  law  the  discharge  of  a  debtor  from  imprisonment  on 
execution,  with  the  assent  of  the  creditor,  operated  to  discharge  the  judg- 
ment. Bunker  v.  Hodgdon,  1834,  7  N.  H.  263.  Aliter  by  statute.  Gen. 
Laws,  c.  225,  §  11;  Abbott  v.  Osgood,  1859,  38  N.  II.  280. 


SEPTEMBER   TERM,  1804.  83 

Lord  V.  Hobbes. 

If  the  debtor  die  in  execution,  this  is  no  defence  hy  the 
representative  of  such  debtor ;  it  is  no  payment.  Where 
there  are  two  debtors,  and,  if  you  please,  one  a  mere  surety, 
taking  the  principal  in  execution  will  be  no  discharge  of  the 
surety. 

Where  several  persons  are  liable  for  the  same  debt  to  the 
same  person,  as  in  the  case  of  drawer,  acceptor,  indorser  of 
bill  of  exchange,  taking  one  in  execution  is  no  discharge  of 
the  others.  So  here,  if  we  consider  the  sum  to  be  recovered 
on  this  bond  as  precisely  the  same  as  that  for  which  Hobbes's 
body  is  in  execution,  this  is  no  discharge  of  Leavit,  and  con- 
sequently no  discharge  of  Hobbes. 

But  this  case  does  not  come  within  the  rule,  because  this 
suit  is  not  brought  for  the  same  cause.  If  the  contents  of  the 
execution  had  been  paid  before  the  commencement  of  this 
suit,  still,  upon  demand  for  the  sum  awarded,  the  bond  was 
forfeited,  and  the  plaintiff  entitled  at  least  to  interest  for  the 
delay. ^  This  is  not  a  suit  on  the  award.  If  it  were,  it  would 
not  then  come  within  the  rule  as  it  respects  Leavit,  supposing 
the  award  to  be  joint  and  several  against  both.  This  suit  is 
on  a  bond  which  was  taken  as  a  collateral  or  supplementary 
security.  It  does  not  destroy  the  judgment,  even  if  nothing 
more  could  be  recovered  in  this  action  than  the  amount  of  the 
judgment  rendered  on  the  report.  And  the  judgment  does 
not  destroy  the  bond.  The  same  person  may  give  two  securi- 
ties for  the  same  debt,  (a)  In  rendering  judgment  on  this 
bond,  no  notice  can  be  taken  of  the  judgment  except  to  prove 
the  debt,  the  amount.  Payment  will  avail,  but  the  body  being 
in  execution  is  not  payment  as  it  respects  Leavit,  and  there- 
fore not  payment  as  it  respects  Hobbes ;  and  because  this  is 

(a)  But  it  is  a  rule  that  a  plaintiff  cannot  recover  a  double  satisfaction. 
2  T.  R.  483.  How  would  it  be  in  case  of  bond  to  abide  an  award  (not 
made  by  rule  of  court),  and  suit  on  the  award,  and  debtor  committed,  and 
then  suit  on  the  bond  ?  Would  such  action  lie,  and  would  not  commit- 
ment be  satisfaction  quoad  plaintiff  ? 

^  At  that  time,  interest  on  a  judgment  could  not  be  collected  on  an 
execution.  French  v.  Eaton,  1844,  15  N.  II.  337.  This  is  now  changed 
by  statute.     Gen.  Laws,  c.  235,  §  10. 


84  ROCKINGHAM. 


Lord  V.  Hobbes. 


not  precisel}'^  the  same  cause  of  action,  and  is  not  a  suit  simply 
to  enforce  the  same  judgment,  it  comprehends  something 
more. 

If  the  party  attempts  to  enforce  payment  of  any  thing 
more  than  this  judgment,  an  midita  querela  will  lie.  But  it 
is  sufficient  for  the  present  to  say  that  there  has  been  no 
sucli  satisfaction  as  saves  the  forfeiture  of  the  bond  declared 
on.  (a) 

Judgment  for  plaintiff  for  penalty^  and  execution  for  amount 
of  aivard  with  interest.  (6)  ^ 

(a)  If  this  were  to  be  considered  as  a  suit  on  the  judgment,  or  perhaps 
same  cause  of  action,  and  Ilobbes  sole  obligor  in  the  bond,  then  the  matter 
set  forth  in  the  plea  would  be  a  good  bar. 

See  lleid  v.  Hobbes  [Rockingham,  September  Term,  180-1],  9  Manu- 
script Reports,  11.5  [where  the  bond  given  by  Ilobbes  to  the  sheriff  for  the 
liberty  of  the  jail-yard  was  held  void]. 

(b)  See  2  Tidd,  7(31,  7G2;  5  G.  Bacon,  166. 

1.  A  person  cannot  recover  a  double  satisfaction  for  the  same  cause  of 
action.     2  T.  R.  483. 

Judgment  recovered  in  one  form  of  action,  there  cannot  afterwards  be 
a  recovery  for  the  same  cause  of  action.  If  the  party  may  sue  in  debt  or 
covenant,  trover  or  money  had  and  received,  trespass  or  trover,  &c. :  if  he 
recover  judgment  in  debt,  he  shall  not  sue  in  covenant,  &c.  There  is  no 
reason  why  courts  should  be  employed  so  uselessly,  or  that  the  party 
should  be  harassed  with  a  second  suit  for  what  has  been  accomplished  ia 
a  former  one.     Cowp.  129,  147. 

2.  But  if  there  are  two  securities  for  the  same  cause,  they  may  be 
both  prosecuted  to  judgment  and  execution,  as  a  bond  and  mortgage. 
But  there  can  be  but  one  satisfaction.  Actual  payment  of  the  debt 
discharges  the  mortgage.  5  G.  Bacon,  166.  {Quoere,  of  taking  the  body 
in  execution.) 

3.  If  several  persons  are  liable  for  the  same  cause  of  action,  the  policy 
of  the  law  requires  that  there  should  be  but  one  suit ;  but  oftentimes  there 
may  be  more  than  one  ;  but  there  can  be  but  one  satisfaction.  Where 
they  are  sued  jointly,  or  where  they  are  sued  severally,  nothing  but  actual 
payment  can  avail.  A  suit  pending,  judgment,  execution,  and  body  in 
prison,  will  not  avail  the  other  defendants  or  debtors.     K  one  of   the 


1  "First,  I  agree  clearly  that  it  is  not  an  actual  satisfaction,  no  not 
between  the  parties,  according  to  Hillary's  Case,  33  H.  VI.  47,  where  one 
was  bound  to  satisfy  for  goods  that  he  had  embezzled,  and,  in  debt  upon 
an  obligation,  he  pleaded  that,  upon  a  suit  for  those  goods,  he  was  taken  in 


SEPTEMBER   TERM,   1804.  85 


Lord  V.  Hobbes. 


debitors  has  been- in  execution  and  discharged  by  creditor,  this  is  equiva- 
lent to  actual  payment ;  the  law  presumes  payment. 

4.  If  there  be  but  one  debtor,  and  his  body  is  in  execution,  the  law 
will  not  permit  the  creditor  to  take  his  estate;  this,  it  is  thought,  would 
be  oppressive.  Therefore  there  can  be  no  alias  execution,  nor  debt  main- 
tained on  the  judgment.  And,  as  this  is  not  permitted,  it  would  seem 
that  there  being  two  securities  would  not  alter  the  case,  if  both  for  the 
same  thing. 

But  the  body  in  execution  is  not  considered  as  payment;  because,  if 
the  party  die,  his  representatives  are  liable ;  and,  if  he  swear  out,  his 
estate  is  liable. 

5.  If  cause  of  action  be  in  any  respect  different,  the  rule  does  not 

apply-  

execution  for  the  damage,  and  it  was  adjudged  no  plea.  But  this  is 
nothing  to  the  case  in  question;  for  without  doubt  it  is  no  satisfaction  to 
common  speech,  nor  to  a  foreign  plea."  Foster  v.  Jackson,  Hob.  52  a, 
59.  "A  foreign  plea  may  be  defined  to  be  where  the  question  is  made 
between  the  same  parties  in  another  case,  or  between  the  creditor  and  a 
third  party  bound  to  pay  the  same  debt;  and  generally,  where,  by  the 
pleadings,  the  question  of  satisfaction  by  the  arrest  under  the  ca.  sa. 
comes  in  collaterally.  HiUearie^s  case  is  an  illustration  of  it.  A  bond  was 
given  for  a  judgment,  and  the  party,  on  being  sued  on  the  bond,  pleaded 
that  he  was  then  in  jail  under  the  judgment:  it  was  held  to  be  no 
satisfaction."  O'Neall,  J.,  in  Mazyck  v.  Coil,  1832,  3  Rich.  (S.  C.)  L. 
235,  237. 

"  .  .  .  No  collateral  security  is  waived  or  lost  by  the  mere  legal  opera- 
tion and  effect  of  committing  the  debtor  to  prison."  Metcalf,  J.,  in 
Twining  v.  Foot,  1850,  5  Cush.  512,  515.  And  see  Freeman  on  Execu- 
tions, §  462. 

A  mortgagee,  or  pledgee,  who  has  taken  the  body  of  the  debtor  in 
execution  for  the  debt,  is  nevertheless  entitled  to  the  benefit  of  his  collat- 
eral security.  Tappan  v.  Evans,  1840,  11  N.  H.  311 ;  Morse  v.  Woods, 
1830,  5  N.  H.  297;  Davis  v.  Battine,  1830,  2  Russ.  &  M.  76;  Hamilton  v. 
Bredeman,  1860,  12  Rich.  (S.  C)  L.  464. 

Taking  the  body  of  a  judgment  debtor  in  execution  does  not  discharge 
a  surety  in  a  bond  given  to  dissolve  an  attachment  :  Murray  v.  Shearer, 
1851,  7  Cush.  333;  Moore  v.  Loring,  1871,  106  Mass.  455  (and  see  Tracy 
V.  Preble,  1875,  117  Mass.  4) ;  nor  a  surety  in  a  recognizance  conditioned  to 
pay  debt  and  costs  unless  the  judgment  debtor  pay  in  nine  months:  Sharpe 
v.  Speckenagle,  1817,  3  Serg.  &  R.  463 ;  nor  is  a  surety  in  a  bond  for  the 
prosecution  of  a  civil  action  exonerated  by  the  imprisonment  of  the  princi- 
pal on  execution  for  the  costs  :  County  Treasurer  v.  Bissel,  1783,  1  Root 
(Conn.),  85  ;  nor  is  one  who  has  been  charged  as  tr"-tee  of  a  debtor 
discharged   by  the  subsequent  commitment  of  the  debtor  in  execution : 


86  ROCKINGHAM. 


Lord  V.  Hobbes. 


Cheney  v.,  Whitely,  1852,  9  Cush.  289.  And  the  liability  of  a  receiptor  for 
goods  attached  is  not  discharged  by  the  subsequent  commitment  of  the 
debtor  on  the  execution ;  or  by  the  bringing  of  a  suit,  and  the  recovery  of 
a  judgment  therein,  by  the  creditor  against  the  debtor  and  his  surety,  for 
an  escape,  on  a  bond  given  by  them  for  the  prison  Umits.  Twining  v. 
Foot,  1850,  7  Cush.  512;    Winch  v.   Wright,  reported  post. 

In  New  York,  however,  there  are  decisions  in  the  opposite  direction. 
The  present  imprisonment  of  the  debtor  on  execution  is  there  held  a  bar, 
both  for  principal  and  surety,  to  an  action  on  a  bond,  given  to  stay  execu- 
tion for  ninety  days,  and  conditioned  for  the  payment  of  the  judgment 
before  or  at  the  expiration  of  ninety  days  :  Sunderland  v.  Loder,  1830, 
5  Wend.  58 ;  and  so  of  an  action  on  a  note  given  by  the  debtor  and 
surety  as  collateral  security  for  payment  of  the  judgment;  Wakeman 
V.  Lyon,  1832,  9  Wend.  241;  nor  can  an  action  be  maintained  during 
the  imprisonment  of  the  debtor  against  the  sureties  on  a  bond  given 
upon  removal  of  action  to  another  court,  conditioned  to  pay  plaintiff 
the  amount  of  any  judgment  he  may  recover:  Koenig  v.  Steckel,  1874, 
58  N.  Y.  475. 

(As  to  whether  a  judgment  creditor  can  in  any  manner  avail  himself 
of  his  judgment  by  way  of  set-off  while  he  has  the  debtor's  body  in 
execution,  compare  Thompson  v.  Parish,  1859,  5  C.  B.  n.  s.  685;  Tay- 
lor v.  Waters,  56  Geo.  III.  5  M.  &  S.  103;  Simpson  v.  Hanley,  53  Geo. 
III.  1  M.  &  S.  696;  Peacock  v.  Jeffery,  1809,  1  Taunt.  426;  Cooper  v. 
Bigelow,  1823,  1  Cow.  56;  Utica  Ins.  Co.  v.  Power,  1832,  3  Paige,  Ch. 
365.) 

That  the  bond  was  a  new  and  different  cause  of  action,  distinct  from 
the  plaintiff's  original  suit  which  was  submitted  to  the  arbitrators,  and 
was  a  contract  separate  from  and  additional  to  the  submission,  see  Hooper 
V.  Cox,  1875,  117  IMass.  1,  Morton,  J.,  3;  Huhbell  v.  Bissell,  1860, 
15  Gray,  551,  Hoar,  J.,  553. 


OCTOBER   TERM,  1804.  87 


Raymond  v.  Stiles. 


CHESHIRE,   OCTOBER   TERM,   1804. 


John  Raymond,  Administrator  of  Elizabeth  Bachelder, 
V.  John  W.  Stiles  and  Jer.  Stiles,  Administrators  of 
Jer.  Stiles. 

An  administrator  in  the  solvent  course,  who  has  suffered  judgment  to  be  recov- 
ered against  himself  by  default,  cannot  plead  want  of  assets  to  an  action  of 
debt  against  him  on  such  judgment,  suggesting  waste. 

The  representatives  of  an  administrator,  as  far  as  they  have  assets,  are  liable  for 
his  waste.  An  action  of  debt  (suggesting  waste  by  the  first  administrator) 
may  be  brought  against  the  administrator  of  an  administrator,  upon  a  judg- 
ment recovered  against  the  first  administrator. 

The  plaintiff,  as  administrator  of  E.  Bachelder,  exhibited  a 
claim  to  the  commissioners  appointed  to  receive,  examine, 
and  adjust  the  claims  of  the  creditors  to  the  estate  of  Jer. 
Stiles,  deceased,  represented  insolvent,  and  under  the  admin- 
istration of  the  defendants,  his  sons. 

The  claim  was  this:  The  intestate,  Jer.  Stiles,  was  admin- 
istrator of  Breed  Bachelder.  The  plaintiff's  intestate,  Eliza- 
beth Bachelder,  at  the  Superior  Court,  Cheshire  County,  May 
Term,  1797,  recovered  judgment  against  him  as  administrator 
of  Breed  Bachelder,  by  default,  for  certain  damages  and  costs 

amounting  to  .      Execution   issued  on  the  judgment, 

and  7iuUa  bona  returned ;  and  afterwards  the  administrator, 
Jer.  Stiles,  and  Elizabeth  Bachelder  both  died. 

The  commissioners  wholly  rejected  the  claim ;  and  the 
plaintiff,  at  the  time  the  commissioners  returned  and  made 
their  report  to  the  judge  of  probate,  appealed  to  this  court, 
and  the  proceedings  required  in  such  case  by  the  statute  (ed. 
1805,  183)  were  had.  The  declaration  filed  in  the  Probate 
Office  was  for  money  had  and  received  by  Jer.  Stiles,  de- 
ceased, to  the  use  of  plaintiff's  intestate. 

Upon  the  opening  of  the  case  at  a  former  Term,  it  was  sug- 


88  CHESHIRE. 


Raymond  v.  Stiles. 


gested  by  the  Court  that  the  merits  could  not  be  tried  under 
a  count  for  money  had  and  received  ;  (a)  that  the  question  to 
be  tried  was  whether  Jer.  Stiles,  the  administrator,  b}'  suffer- 
ing judgment  to  go  by  default,  had  admitted  assets.  The 
action  to  charge  him  must  be  debt  on  the  judgment,  suggest- 
ing waste  ;  or  scire  facias  with  a  similar  suggestion,  and  pray- 
ing for  execution  de  bonis  propriis  of  the  administrator  (Laws, 
ed.  1805,  176).  This  latter  remedy  was  lost  by  the  death  of 
the  administrator. 

Accordingly,  the  counsel  for  the  plaintiff,  having  obtained 
leave  to  amend  (by  consent),  declared  in  debt  on  the  judg- 
ment, suggesting  waste. 

The  defendants  pleaded  :  —  (^) 

1.  That  their  testator  was  not  guilty  ; 

2.  That  he  was  not  administrator  ; 

3.  That  he  had  fully  administered,  traversing  the  waste  ; 

4.  The  act  of  confiscation. 

There  were  issues  joined  on  the  first  three  pleas,  and  a  gen- 
eral demurrer  to  the  fourth. 

It  was  agreed  to  submit  the  cause  to  the  Court  for  their 
opinion  on  the  foregoing  statement,  and  that  the  respective 
parties  should  be  nonsuit  or  default,  as  that  opinion  should  be 
for  the  plaintiff  or  defendant. 

The  opinion  of  the  Court  was  now  delivered  by  Smith, 
C.  J. 

After  stating  the  case,  he  observed  that  it  is  extremely 
clear  this  action  might  have  been  maintained  against  Jer. 
Stiles  in  his  lifetime.  He  could  have  made  no  defence.  Suf- 
fering judgment  by  default  was  an  admission  of  assets.  He 
could  not,  on  the  scire  facias,  or  to  the  action  of  debt,  deny 
assets,  (c)     Whenever  an  administrator  does  not  administer  in 

(a)  Sed  vide  post. 

(b)  It  would  seem  that  the  proper  plea  would  have  been  that  the  admin- 
istrator had  not  wasted  the  estate  of  his  intestate.     3  T.  R.  685. 

But  not  guilty  may  be  pleaded  :  1  T.  R.  462;  so  may  nil  debet:  id. ; 
2  Ld.  Raym.  1502,  1503. 

(c)  It  is  presumed  Stiles  did  not  administer  Breed  Bachelder's  estate 
in  the  insolvent  course  of  administration. 


OCTOBER   TERM,   1804.  89 


Raymond  i'.  Stiles. 


the  insolvent  course,  lie  admits  assets,  provided  there  is  any 
estate  to  be  apportioned  among  the  unprivileged  creditors. 
(II.  Manuscript,  Descent,  and  Last  Wills,  1083-1057.) 

At  common  law  it  seems  that  representatives  of  representa- 
tives were  not  liable  for  the  devastavits  of  those  they  repre- 
sented, (a)  The  reason  given  does  not  seem  to  be  a  good  one  ; 
viz.,  because  they  could  not  be  supposed  to  know  how  those 
they  represent  had  disposed  of  the  goods.  But  in  chancery  it 
was  otherwise  ;  they  were  liable  as  far  as  they  had  assets. 
Creditors  may,  in  equity,  follow  the  assets  into  whose  hands 
soever  they  come.  To  remedy  the  common-law  doctrine, 
which  was  found  inconvenient,  30  Car.  II.  c.  7,  and  4  &  5 
W.  &  M.  c.  24,  provide  that,  where  the  representative  shall 
waste  or  convert  to  his  own  use  goods,  &c.,  of  his  principal,  his 
representative  shall  be  chargeable  in  the  same  manner  as  he 
who  wasted,  &c.,  should  or  might  have  been.  1  Wms.  Saund. 
216,  219,  &c. 

It  is  believed  that  this  doctrine  of  the  common  law  was 
never  admitted  here,  or,  if  it  was,  that  the  statute  remedy 
(which  was  as  early  as  1677-1692)  was  admitted  also. 

The  principles  laid  down  by  the  Court  in  Hamhly  v.  Trott, 
Cowp.  371,  seem  clearly  to  show  that  the  doctrine  was  not 
well  founded  at  common  law.  The  estate  of  the  administra- 
tor may  be  presumed  to  be  benefited  by  the  property  in 
respect  of  which  he  is  liable.  If  he  received  his  principal's 
money,  then  he  is  indebted  to  his  creditors  to  the  same 
amount ;  he  received  the  money  to  their  use.  If  he  sold  the 
goods  of  his  principal,  the  same  thing  follows.  If  he  used, 
and  consumed  in  using,  the  goods,  his  estate  gained  the  value  ; 
he  was  enriched  by  his  executorship  or  administration  to  the 
value.  The  injury  done  to  the  estate  of  the  deceased  will 
generally  be  attended  with  proportional  gain  to  the  repre- 
sentative. He  gains  what  the  estate  has  lost.  Property  is 
acquired  in  respect  of  which  he  is  in  equity  (at  least)  charge- 
able. In  this  case  we  may  presume  that  Jer.  Stiles  received 
value  from  the  estate  of  Breed  Bachelder  to  the  amount  of 

(rt)  3  G.  Bacon,  99;  1  Salk.  314;  Com.  Dig.  Administration  (B.  15); 
2  Ld  Raym.  971. 


90  CHESHIRE. 


Raymond  v.  Stiles. 


this  judgment,  and  that  in  consideration  thereof  he  took  upon 
himself  this  debt.  The  plea,  it  is  presumed,  might  have  been 
different.     Nil  debet  would  have  been  good. 

We  have  enlarged  the  remedy  against  representatives  of 
deceased  persons.  By  a  late  statute,  ed.  1805,  96,  actions  for 
misconduct  in  office  may  be  prosecuted  against  the  representa- 
tive of  a  sheriff;  trespass  for  carrying  away  goods,  &c. 

Upon  the  whole,  the  Court  are  clearly  of  opinion  that  the 
defendants  are  liable  ;  that  the  common-law  doctrine  never 
prevailed  here,  at  least  never  since  the  statutes  of  Charles  and 
William  ;  but  that  we  have  adopted  the  chancery  doctrine, 
which  is  more  just,  and  not  unfit  to  be  carried  into  execution 
by  a  court  of  common  law  ;  that  the  deceased  administrator, 
by  suffering  judgment  to  go  by  default,  admitted  that  he  had 
received  assets  to  answer  this  debt. 

The  defendants  were  defaulted,  (a)  ^ 

(a)  See  Whea'ly  v.  Lane,  1  Wms.  Sauud.  216-219,  and  notes. 

1  I.  As  to  the  first  proposition,  see  Hill  v.  Rogers  and  other  cases  cited  in 
note  to  extracts  from  Manuscript  Treatise  on  Probate  Law,  post. 

II.  Chancellor  Kent  said,  "  But  for  decastacits  or  wrongs  to  property, 
the  personal  representatives  of  the  deceased,  who  committed  the  tort,  were 
made  answerable  \>y  the  statute  of  30  Car.  II.  c.  7,  and  4  &  5  W.  &  M. 
c.  24;  and  doubtless  the-same  law  exists  in  this  country."  2  Kent,  Com. 
416,  n.  e. 

These  statutes  are  held  to  be  in  force  in  Maryland.  Sibley  v.  Williams, 
1830,  3  Gill  &  J.  52.  Contra,  in  Tennessee.  GriJ/ilh  v.  Beasley,  1837, 
10  Yerg.  434. 

Whether  a  suit  can  be  maintained  against  an  executor  of  an  executor 
by  a  creditor  of  the  first  testator,  who  had  not  recovered  judgment  against 
the  first  executor  in  his  lifetime,  qucere. 

See,  in  the  affirmative,  Williams's  note  to  Whealley  v.  Lane,  1  Saund. 
216,  219  e;  Sibley  v.  Williams,  ubi  sup.  ;  Anderson,  C.  J.,  in  Gregorys. 
Harrison,  1851,  4  Fla.  56,  77-79;  Green,  J.,  in  Coleman,  Administrator  of 
Wernick,  v.  APMurdo,  1827,  5  Rand.  (Va.)  51,  79-84. 

Contra,  Coalter,  J.,  in  5  Rand.  (Va.)  104-108. 


NOVEMBER   TERM,  1804.  91 


Morey  v.  Proprietors  of  Orford  Bridge. 


GRAFTON,  NOVEMBER  TERM,  1804. 


Samuel  Morey  v.  Proprietors  of  Orford  Bridge. 

M.  was  the  owner,  by  grant  from  a  colonial  governor,  of  an  exclusive  ferry-privi- 
lege within  certain  limits.  Dec.  18,  1793,  M.  gave  an  applicant  for  a  bridge- 
charter  his  written  consent  to  the  erection  of  a  bridge  within  the  limits  of  his 
ferry.  This  writing  was  given  to  be  exhibited  to  the  legislature,  and  was 
so  exhibited.  Jan.  29,  1794,  an  act  was  passed,  authorizing  the  erection  of  a 
bridge,  the  act  to  be  void  if  the  corporation  should  fail  to  erect  the  bridge 
within  four  years.  The  bridge  not  having  been  built,  an  act  was  passed  June 
13,  1800,  allowing  a  further  time  of  three  years ;  and  the  bridge  was  built 
within  that  time. 

ffeld,  that  M.  and  his  grantee  with  notice  were  estopped  by  M.'s  consent  from 
complaining  of  the  erection  of  the  bridge. 

What  M.'s  right  would  be,  in  the  absence  of  such  consent,  qiuere. 

This  was  an  action  on  the  case.  The  declaration  stated, 
in  substance,  that  the  plaintiff  was  and  is  the  owner  of  the 
privilege  of  a  ferry  across  Connecticut  River,  at  the  landing 
in  Orford,  and  extending  two  miles  above  and  two  miles 
below  ;  and  that  the  defendants,  without  leave  from  the  plain- 
tiff, erected  a  bridge,  September,  1802,  across  the  river  within 
the  plaintiff's  privilege,  and  have  kept  it  there  ever  since  ; 
whereby  the  plaintiff  is  injured  in  his  ferry  and  deprived  of 
the  profits  thereof. 

Plea  :  not  guilty  ;  reserving  liberty  to  give  special  matter  in 
evidence,  (a) 

(a)  Qucere.  Ought  not  the  suit  to  have  been  brought  against  the  toll- 
gatherer,  or  the  persons,  as  individuals,  who  directed  him  to  carry  over  for 
toll,  considering  this  as  in  lieu  of  a  ferry?  As  he  sues  defendants  as  a 
corporate  body,  is  it  competent  for  him  to  deny  that  they  have  a  lawful 
right  to  do  what  is  the  sole  and  only  end  of  their  creation;  viz.,  to  build 
and  maintain  a  bridge  over  Connecticut  River?  If  the  act  is  unconstitu- 
tional, it  is  a  nullity,  and  yet  plaintiff  treats  it  as  a  valid  act  ;  at  least  for 
one  purpose,  viz.  as  subjecting  them  to  suit.  4  T.  R.  794,  the  action  was 
against  individuals  for  an  act  done  under  an  act  of  Parliament. 


92  GRAFTON. 


Morey  v.  Proprietors  of  Orford  Bridge. 


The  following  case  was  made  for  the  opinion  of  the  Court  ; 
and  it  was  agreed  that  the  judgment  should  be  entered  by 
nonsuit  or  default,  according  as  that  opinion  should  be  in  favor 
of  the  plaintiff  or  defendant. 

Dec.  18,  1793,  Israel  Morey,  father  of  the  plaintiff,  was  the 
owner  of  the  ferry  mentioned  in  plaintiffs  declaration  (by 
purchase  from  W.  Simpson,  original  grantee  under  John 
Wentworth,  Governor  of  New  Hampshire,  March  3,  1775). 

William  Simpson,  one  of  the  proprietors  of  Orford  Bridge, 
had,  before  Dec.  18,  1793,  applied,  or  manifested  his  deter- 
mination to  apply,  to  the  legislature  for  a  grant  of  the  privi- 
lege to  build  and  maintain  a  toll-bridge  across  Connecticut 
River  within  the  limits  of  Morey 's  ferry-privilege. 

Israel  Morey,  on  the  same  Dec.  18,  1793,  wrote  and  sub- 
scribed the  following  declaration,  viz.  :  "  Whereas  William 
Simpson,  of  Orford,  in  the  County  of  Grafton,  State  of  New 
Hampshire,  hath  determined,  with  others,  to  erect  a  bridge 
over  the  river  Connecticut,  opposite  Orford  and  Fairlee  ;  and 
as  I  am  possessed  of  the  exclusive  right  of  the  ferry,  extending 
two  miles  each  way  from  the  landing  at  Orford  now  occupied 
for  the  ferry,  I  herel)y  certify  that  I  have  no  objection,  and 
do  hereby  relinquish  the  same,  on  condition  that  a  bridge 
shall  be  erected,  and  as  long  as  the  same  shall  be  supported, 
over  the  said  river,  within  the  limits  thereof,  and  further  as 
the  lands  on  the  west  side  river,  where  the  said  bridge  is 
expected  to  be  erected,  I  hereby  certify  that  I  have  not  any 
objection  to  tlie  same."  (a) 

Morey  gave  this  license,  or  consent,  with  a  view  to  liis  own 
accommodation,  (6)  —  being  desirous  that  a  bridge  should  be 
erected  in  that  place,  and  that  Simpson  and  others  should 
obtain  an  act  of  incorporation  for  tlie  purpose,  —  and  made 
and  delivered  him  the  said  writing,  that  he  might  exhibit  it 
to  the  legislature  when  he  should  apply  for  an  act  of  incor- 
poration.     This    writing    was  accordingly    exhibited    to    the 

(rt)  The  latter  part  of  this  writing  is  unintelligible,  but  it  is  not 
material. 

(J>)  Conceiving,  probably,  that  it  woulil  enhance  the  value  of  his  real 
estate  more  than  the  loss  of  the  profits  of  the  ferry. 


NOVEMBER   TERM,  1804.  93 

Money  v.  Proprietors  of  Orford  Bridge. 

legislature  then  in  session  ;  and  an  act  passed,  on  Jan. 
29,  1794,  incorporating  William  Simpson  and  others  for  the 
purpose  of  building  a  toll-bridge  at  Orford,  and  authorizing 
them  to  erect  a  bridge  over  any  part  of  Connecticut  River 
opposite  Orford  or  Piermont,  and  granting  to  the  corporation 
the  exclusive  privilege  of  keeping  and  holding  the  same  for 
ever.  The  act  contained  a  clause  that,  if  the  corporation 
thereby  created  should  fail,  for  the  space  of  four  years  from 
the  passing  of  the  act,  to  erect  and  complete  the  bridge,  then 
the  act  should  be  null  and  void  ;  and  also  a  clause  that  noth- 
ing in  the  act  should  affect  the  grant  or  grants  of  any  ferry 
or  ferries  in  Piermont,  but  the  act  was  silent  as  to  privileges 
or  grants  of  ferries  in  Orford. 

The  writing  signed  by  Morey  was  annexed  to  the  original 
act  of  the  legislature,  and  still  remains  annexed  thereto. 
The  bridge  was  not  built  within  the  four  years ;  and  an  act 
passed  the  legislature  June  13,  1800,  on  the  application  of 
Simpson  and  others  interested  in  the  former  grant,  allowing  a 
further  time  of  three  years  for  erecting  the  bridge.  Morey 
gave  no  consent  to  this  latter  act,  nor  had  he  any  notice  or 
knowledge  of  the  application  for  it.  On  Oct.  28,  1800, 
Morey  conveyed  the  ferry  to  his  son,  the  plaintiff  (the 
consideration  expressed  in  the  deed  being  $1,200).  Both 
parties  (to  the  deed)  then  well  knew  of  the  last  act ;  and  the 
plaintiff  knew  of  the  first  act,  and  of  his  father's  consent 
thereto,  and  gave  his  father  an  obligation  that  the  said  writ- 
ing should  not  be  deemed  a  breach  of  the  covenants,  in  his  deed 
conveying  the  ferry.  Within  the  time  limited  in  the  last  act 
the  bridge  was  erected,  and  has  been  continued  ever  since, 
and  defendants  have  received  toll  for  a  year  next  before  the 
date  of  the  plaintiff 's  writ. 

The  question  for  the  opinion  of  the  Court  was,  whether  the 
plaintiff  was  entitled  to  recover. 

At  this  Term,  Smith,  C.  J.,  after  stating  the  substance  of 
the  case,  delivered  the  opinion  of  the  Court. 

It  cannot  admit  of  doubt  that  the  erection  of  the  bridge 
complained  of  lessens  the  value  of  the  ferry  now  owned  by 


94  GRAFTON. 


Morey  v.  Proprietors  of  Orford  Bridge. 


the  plaintiff.  But  it  does  not  follow  that  he  can  maintain 
any  action  to  recover  a  compensation  in  damages  for  the  loss 
he  has  sustained.  1  G.  Bacon,  76-78.  There  are  many  cases 
of  loss  or  damage  (called  in  our  books  damnum  absque  injurid^ 
for  which  no  action  lies.  If  the  defendants  have  a  right  by 
law  to  do  what  they  have  done,  neither  this  action  nor  any 
other  can  be  maintained.  They  claim  this  right  by  virtue  of 
an  act  of  the  legislature,  granting  to  them  the  exclusive  privi- 
lege of  erecting  a  bridge  in  this  place.  It  will  not  be  con- 
tended by  the  plaintiff  that  the  legislature,  or  the  supreme 
authority  in  the  State,  have  not  the  right  to  grant,  upon  such 
terms  as  they  may  think  proper,  to  certain  individuals,  the 
exclusive  privilege  of  keeping  ferries  and  of  building  bridges 
within  certain  limits  over  Connecticut  River.  The  plain- 
tiff claims  the  ferry  under  a  grant  from  Governor  Wentworth, 
March  3,  1775.  This  grant  gives  to  the  person  under  whom 
plaintiff  claims  the  sole  and  exclusive  right  of  keeping  a  ferry, 
and  of  keeping,  using,  and  employing  a  ferry  boat  or  boats, 
for  the  transporting  of  men,  horses,  goods,  cattle,  and  car- 
riages, &c.,  across  Connecticut  River,  within  certain  limits.  By 
this  grant  all  other  persons  are  prohibited  from  setting  up  any 
other  ferry  upon  or  across  the  river  Connecticut  within  two 
miles  above  and  two  miles  below  the  landing-place  at  Orford, 
as  well  as  from  molesting  or  interrupting  the  owner  in  the 
enjoyment  of  his  ferry.  It  may  safely  be  admitted  that  this 
grant  cannot  be  arbitrarily  infringed  or  repealed  by  the 
supreme  power  of  the  State.  It  never  has  been  repealed. 
A  grant  of  a  ferry  to  the  defendants  within  those  limits  would 
be  void ;  it  would  be  an  unconstitutional  act,  which  no  Court 
could  or  would  regard.  Two  questions  arise.  1.  Whether 
the  grant  to  defendants  of  the  exclusive  right  of  erecting  a 
bridge  within  the  limits  of  the  plaintiff's  grant  of  ferry 
is  an  infringement  of  the  latter  privilege  or  grant  ?  2. 
Whether  it  is  made  good  by  the  consent  of  the  owner  of  the 
ferry  ? 

It  is  not  absolutely  necessary  to  express  an  opinion  on  the 
first  point.  There  can  be  no  doubt  but  that  the  legislature 
may  refuse  the  grant  of  a  bridge  till  compensation  is  made 


NOVEMBER   TERM,   1804.  95 

Morey  t'.  Proprietors  of  Orford  Bridge. 

for  the  loss  which  will  be  sustained  by  the  owner  of  the  ferry. ^ 
In  this  act,  which  also  authorizes,  and,  indeed,  on  certain  con- 
tingencies, requires,  the  erection  of  a  bridge  across  the  river 
from  Piermont,  there  is  a  clause  declaring  that  nothing  in  the 
act  contained  shall  affect  the  grant  or  grants  of  any  ferry  or 
ferries  in  Piermont. 

The  grant  of  a  ferry  is  against  common  right,  and  must 
therefore  be  construed  strictly.  It  excludes  all  other  persons 
from  keeping  a  ferry  within  the  limits  of  that  grant,  and,  of 
course,  from  transporting  men,  horses  &c.,  across  the  river  fn 
ferry-boats.  But  it  does  not  prohibit  persons  from  crossing  or 
enabling  others  to  cross  it  in  any  other  way.  The  building  of 
bridges  conduces  greatly  to  the  public  benefit.  Can  it  be 
presumed  that  it  was  intended  in  the  grant  of  a  ferry  to  pre- 
vent the  erection  of  a  bridge  ?  4  T.  R.  794,  796 ;  see 
2  Johns.  263,  Kent,  C.  J.  A  ferry  and  a  bridge,  though  they 
serve  the  same  end,  are  things  totally  distinct  in  their  nature. 
The  grant  of  a  ferry  would  not  infringe  the  grant  of  a  bridge. 
The  grant  of  a  bridge  lessens  or  destroys  the  value  of  a  ferry, 
but  it  does  not  infringe  on  the  privilege  of  keeping  a  ferry 
and  transporting  persons,  &c.,  in  ferrj^'-boats.  It  does  not 
molest  or  interrupt  the  owner  of  the  ferr}^  "  in  his  ferry,"  (a) 

But,  admitting  that  the  grant  to  erect  a  bridge,  and  the 
erection  of  a  toll-bridge,  is  a  molestation,  interruption,  disturb- 
ance, or  injury,  for  which  an  action  lies,  is  the  present  act 
unconstitutional  ?  This  depends  upon  another  question.  Did 
the  owner  of  the  ferry  consent  to  the  passing  of  the  act? 

It  has  been  contended,  on  the  part  of  the  plaintiff,  that  the 
writing  signed  b}^  Morey  and  annexed  to  the  original  act  is 
not  a  conveyance  to  the  State,  or  to  the  corporation  created  by 
the  act,  of  the  right  of  keeping  a  ferry.     This  is  clear.     A 

(«)  Suppose  a  number  of  iudividuals  build  a  bridge  for  the  use  of  the 
public  "without  toll,  or  that  the  State  build  such  a  bridge. 

^  And  there  can  be  no  doubt  that  the  legislature  may  authorize  the 
building  of  a  bridge,  if  suitable  provision  is  made  for  compensating  the 
owners  of  the  ferry.  Pifcataqua  Bridge  v.  New  Hampshire  Bridge,  1834. 
7  N.  H.  35;  Crosby  v.  Hanover,  1858,  36  N.  H.  404;  Backus  \.  Lebanon, 
1840,  11  N.  H.  19. 


96  GRAFTON. 


Morey  v.  Proprietors  of  Orford  Bridge. 


conveyance  must  be  by  deed.  It  could  not  be  to  the  corpora- 
tion, because  they  had  at  the  time  no  existence.  It  does  not 
purport  to  be  a  conveyance,  but  a  consent  that  the  act  should 
pass ;  that  a  privilege  alleged  to  be  inconsistent  with  one 
before  granted  to  him  should  be  granted  to  another,  (a)  Sup- 
pose, after  the  act  had  passed,  I.  Morey  had  executed  this 
writing  to  the  corporation  ;  could  he  afterwards  complain  that 
they  were  guilty  of  a  wrong  in  erecting  a  bridge  ?  If  he  could 
not,  he  shall  not  in  this  case,  because  he  authorized  the  leg- 
islature to  authorize  the  defendants  to  do  what  they  have 
done.  (6)  But  it  is  objected  that  Morey's  consent  was  not 
absolute,  but  conditional.  The  only  condition  expressed  is 
that  a  bridge  be  erected  and  continued.  That  condition  has 
been  complied  with.  But  it  is  said  that  this  consent  must  be 
understood  as  limited  to  the  four  years  mentioned  in  the  first 
act.  But  why  this  construction  ?  He  might  have  given  it 
upon  this  condition  expressed.  The  act  was  not  passed  when 
this  writing  was  made ;  no  mention  had  been  made  of  four  years 
or  any  other  limited  period  within  which  the  bridge  should  be 
erected.  He  must  be  understood  to  mean,  either  that  the 
bridge  should  be  erected  within  such  time  as  the  legislature 
should  be  pleased  to  limit,  or  that  it  should  be  erected  within 
a  reasonable  time.  If  his  consent  had  been  given  after  the 
act  was  passed,  it  would  then  perhaps  be  fair  to  say  that  his 
meaning  was  that  the  bridge  should  be  erected  within  four 
years.  But  here  he  seems  to  have  submitted  it  to  the  legisla- 
ture to  impose  such  terms  and  conditions  on  the  corporation 
as  they  should  judge  proper.  The  legislature  by  the  first  act 
allowed  four  years ;  they  might,  have  then  allowed  seven. 
In  the  second  act  it  is  declared  that  it  is  reasonable  that  three 
years  more  should  be  allowed,  (e)  They  understood  Morey's 
consent  to  be  unlimited,  and  therefore  did  not  notify  him  of  the 

(a)  It  does  not  seem  that  any  particular  form  is  requisite  to  be  observed 
in  giving  consent  to  an  act  of  the  legislature. 

(fe)  What  is  this  but  saying,  "Erect  a  bridge;  I  consent,"  —  and 
then  afterwards,  "  Demolish  it,  because  it  injures  ray  ferry." 

(c)  If  the  legislature  could  at  once  allow  seven  years,  why  not  at 
twice? 


NOVEMBER   TERM,  1804.  97 

Morey  v.  Proprietors  of  Orford  Bridge. 

application  for  the  second  act.  We  understand  it  so,  at  least 
as  submitting  this  to  legislative  discretion.  The  defence, 
therefore,  is  good.  The  defendants  have  done  nothing  which 
the  act  does  not  warrant.  The  act  is  constitutional,  even  if  it 
affects  the  rights  of  the  owner  of  the  ferry  ;  because  he  con- 
sented, (a)  and  is  estopped  from  ever  afterwards  objecting. 
This  consent  was  not  limited  to  any  particular  time  within 
which  the  bridge  must  be  erected.  It  is  sufficient  if  done  in  a 
reasonable  time.  It  has  been  erected  in  a  reasonable  time,  a 
time  not  unusually  allowed  in  cases  of  this  sort. 

Plaintiff  became  nonsuit} 

(a)  Act  cannot  take  away  private  property  without  consent  of  the 
owner,  and  without  any  public  object  or  any  just  compensation,  ut  senible, 
2  Johns.  2G3. 

^  According  to  later  decisions,  the  question  of  reasonable  time,  when 
open,  would  be  one  of  fact  for  a  jury.  Tyler  v.  Webster,  1861,  43  N.  H. 
147,  151;  Slate  v.  Plaisted,  1801,  43  N.  H.  413;  Batchelderv.  Batchelder, 
1868,  48  N.  H.  23,  24.  But  if  Morey  is  regarded  as  having  submitted  the 
matter  of  time  to  the  discretion  of  the  legislature,  there  would  be  no 
question  of  the  sort  left  open  in  this  case. 

A  legislative  grant  of  a  ferry  within  the  limits  of  a  previously  granted 
exclusive  ferry-privilege,  without  the  assent  of  the  first  grantee,  or  with- 
out making  provision  for  his  compensation,  would  be  invalid,  on  the 
principle  of  the  decision  in  The  Binghamton  Bridge,  1865,  3  Wall.  (U.  S.) 
51  (unfavorably  commented  on  by  Judge  Cooley  in  The  Princeton 
Review  for  March,  1878,  p.  262.  See  also  I'omeroy's  edition  of  Sedgwick 
on  Stat,  and  Const.  Law,  588,  n.).  And  the  legislature  have  no  more  right 
in  such  a  case  to  charter  a  new  free  ferry  than  a  new  toll  ferry.  See  Aikin 
V.  Western  R.  R.,  1859,  20  N.  Y.  370;  Long  v.  Beard,  1819,  3  Murph.  57; 
Pearson,  J.,  in  Taylor  v.  Wilmington  Sf  M.  R.  R.,  1857,  4  Jones  (N.  C), 
L.  277,  282-284;  Davis,  J.,  in  The  Binghamton  Bridge,  ubi  sup.,  81,  82; 
Townsend  v.  Bleivett,  1841,  5  How.  (Miss.)  503.  See,  however.  Tucker,  P., 
in  Trent  v.  Cartersville  Bridge  Co.,  1841,  11  Leigh,  521,  531,  and  Pearson, 
C.  J.,  in  Satterthwaite  v.  Commissioners  of  Beaufort  County,  1877,  76  N.  C. 
153,  155. 

But  upon  the  principles  of  construction  applied  to  such  grants  (Charles 
River  Bridge  v.  Warren  Bridge,  1837,  11  Pet.  420,  544-548),  it  is  compe- 
tent for  the  legislature  to  authorize  the  establishment  of  other  methods  of 
transportation,  which  will  materially  impair  the  value  of  the  so-called 
"exclusive  "  right  of  ferriage. 

"The  grant  of  an  exclusive  right  of  ferry  is  certainly  not  an  exclusive 
right  of  all  modes   of  transportation    and  conveyance."     An   exclusive 

7 


98  GRAFTON. 


Morey  v.  Proprietors  of  Orford  Bridge. 


privilege  of  maintaining  a  ferry  within  certain  limits  is  not  infringed  by 
the  erection  of  a  bridge  within  those  limits.  Parker,  J.,  in  Piscataqua 
Bridge  v.  New  Hampshire  Bridge,  1834,  7  N.  H.  35,  59,  60;  Melush, 
L.  J.,  in  Hopkins  v.  Great  Northern  R.,  1877,  L.  R.  2  Q.  B.  D.  224;  Piatt 
V.  Covington  &r  Cincinnati  Bridge  Co.,  1871,  8  Bush  (Ky.),  31  ;  Richmond  §" 
Lexington  Turnpike  Co.  v.  Rogers,  1863,  1  Duv.  (Ky.)  135.  (8ee,  however, 
Hitchcock,  J.,  in  Dyer  v.  Tuskaloosa  Bridge  Co.,  1835,  2  Port.  (Ala.)  296, 
305;  and  Gates  v.  APDaniel,  1829,  2  Stew.  (Ala.)  211,  where  it  was  held 
that  the  erection  of  a  bridge  without  public  authority  was  an  infringement 
on  an  exclusive  ferry.) 

Conversely,  it  has  been  decided,  that  an  exclusive  right  of  maintaining  a 
toll-bridge  is  not  infringed  by  the  grant  of  a  ferry.  Parrott  v.  City  of  Law- 
rence, 1872,  2  Dill.  332.  And  see  Miller,  J.,  in  Proprietors  of  Bridges  v. 
Hoboken  Land  ^  Improvement  Co.,  1863,  1  Wall.  (U.  S.)  116,  149.  In 
Norris  v.  Farmers^  Sf  Teamsters^  Co.,  1856,  6  Cal.  590,  it  was  held  that 
maintaining  a  ferry  without  public  authority  was  an  infringement  on  a 
regularly  licensed  bridge;  but  the  case  was  decided  under  a  statute  provi- 
sion that  "  no  ferry  or  toll-bridge  "  should  be  established  within  a  certain 
distance  of  a  regularly  established  "  ferry  or  toll-bridge." 

Ferries  and  bridges  are  regarded  as  distinct  modes  of  transportation. 
In  an  action  against  a  ferryman  for  refusing  passengers  or  taking  excessive 
prices,  it  is  no  excuse  that  he  has  built  a  bridge  for  passage.  Com.  Dig. 
Pischary,  B.  In  Payne  v.  Partridge,  3  Wm.  III.,  1  Salk.  12  (s.  c.  nomine 
Pain  V.  Patrick,  3  Mod.  289),  it  is  said  that  the  owner  of  a  ferry  cannot 
"  let  down  the  ferry  and  put  up  a  bridge  without  license  and  an  ad  quod 
damnum."  Compare  Morton,  J.,  in  Charles  River  Bridge  v.  Warren 
Bridge,  1829,  7  Pick.  344,  453.  Greer  v.  Haugabook,  1872,  47  Ga.  282, 
decides  that  a  statute  prohibiting  a  private  ferry  within  three  miles  of  a 
"  public  bridge  "  does  not  forbid  the  establishment  of  a  private  ferry 
within  three  miles  of  a  public  ferry. 

The  writer  of  the  above  opinion  in  Morey  v.  Proprietors  of  Orford 
Bridge  was  consulted,  after  his  return  to  the  bar,  by  Frederick  W.  Geyer, 
the  owner  of  the  exclusive  toll-bridge  privilege  over  the  Connecticut  River 
described  in  Tucker  v.  Cheshire  R.  R.,  21  N.  H.  29,  30.  Among  the  ques- 
tions asked  were  the  following  :  Can  an  individual  set  up  a  ferry  within 
the  bridge  limits;  or  any  individual  ferry  himself  over,  or  swim  over? 
Can  any  one  pass  over  in  winter  within  the  limits  on  ice? 

In  reply  to  these  questions,  Judge  Smith  wrote  to  Mr.  Geyer,  under 
date  of  Aug,  29,  1812:  — 

"  I  do  not  think  that  your  grant  takes  away  from  an  individual  the 
right  of  crossing  the  river  in  every  other  way  except  over  your  bridge. 
I  am  not  clear  that  the  legislature  could  not  constitutionally  grant  a  ferry 
within  your  limits.  It  would  be  improper  to  do  it  where  it  would  injure 
the  more  convenient  passage  by  bridge.  The  grant  of  a  bridge  does  not 
seem  to  affect  the  grant  of  a  ferry.     The  public  may  grant  both.     At  any 


NOVEMBER   TERM,  1804.  99 


Morey  v.  Proprietors  of  Orford  Bridge. 


rate,  I  see  nothing  to  restrain  individuals  passing  in  their  own  private 
boats,  swimming  over,  or  passing  on  nature's  bridge,  the  ice.  Setting  up 
a  public  ferry,  that  is,  transporting  persons  across  the  river  for  hire,  is  a 
different  thing,  and  what  has  not  been,  and  will  not  be,  attempted.  I 
have  not  been  able  to  find  any  decisions  on  questions  of  this  sort,  either 
in  the  English  courts,  or  in  those  of  our  own  country.  I  found  my  opin- 
ion on  general  principles  only,  and  should  have  been  glad  if  that  opinion 
had  been  more  agreeable  to  your  wishes." 

In  his  manuscript  notes  on  Mr.  Geyer's  queries.  Judge  Smith  went 
farther  than  his  letter,  and  expressed  the  opinion  that  the  legislature 
"  could  not  prohibit  an  individual  from  swimming  over,  or  going  over  in  his 
boat,  or  wading  through."  Probably  courts  will  be  slow  to  presume  that 
the  legislature  intended  to  impose  such  restrictions.  See  Woodward,  J., 
in  Wetdw.  Chapman,  1856,  2  Clarke  (Iowa),  524,  527;  Trent  v.  Cartersville 
Bridge  Co.,  1841,  11  Leigh,  521.  But  the  charter  of  the  Cayuga  Bridge 
Co.  was  construed  as  prohibiting  a  person  from  crossing  the  lake  on  the 
ice  in  his  own  sleigh  within  three  miles  of  the  bridge.  Cayuga  Bridge  Co. 
V.  Stout,  1827,  7  Cow.  33  ;  overruling  previous  statement  of  Savage,  C.  J., 
in  Sprague  v.  Birdsall,  1823,  2  Cow.  419. 

An  exclusive  ferry-right  is  not  infringed  by  the  carrying  of  passengers 
and  goods  in  another  boat  in  the  ordinary  prosecution  of  commerce,  with- 
out the  regularity  or  purpose  of  ferry-trips.  Swayne,  J.,  in  Conway  v. 
Taylor's  Executor,  1861,  1  Black  (U.  S.),  603,  633.  But  the  proprietor  of 
a  mail  coach,  who  is  in  the  habit  of  transporting  passengers  in  his  coach 
across  the  river  on  a  boat,  though  not  receiving  pay  specifically  for  ferri- 
age, infringes  on  a  ferry-right.  Weld  v.  Chapman,  1856,  2  Clarke  (Iowa), 
524. 

Where  an  exclusive  right  of  maintaining  a  toll-bridge  within  certain 
limits  was  granted  prior  to  the  introduction  of  railroads  as  a  means  of 
transportation,  it  has  been  held  not  an  infringement  to  authorize  the  erec- 
tion, within  those  limits,  of  a  railroad  viaduct,  or  bridge,  to  be  used  for 
railroad  purposes.  Proprietors  of  Bridges  v.  Hoboken  Land  ^  Improvement 
Co.,  1863,  1  Wall.  (U.  S  )  116;  affirming  s.  c.  14  N.  J.  Eq.  (2  Beasley), 
81,  503;  McLeod  v.  Savannah,  Albany,  ^  Gulf  R.  R.,  1858,  25  Ga.  445; 
McReev.  Wilmington  Sf  R.  R.  R.,  1855,  2  Jones  (N.  C),  L.  186;  Wal- 
worth, Ch.,  in  Mohawk  Bridge  Co.  v.  Utica  ^  Schenectady  A'.,  1837, 
6  Paige,  Ch.  554,  565;  Thompson  v.  N.  H.  §•  N.  R.  R.,  1846,  3  Sandf.  Ch. 
625,  660.  See  also  Gilchrist,  C.  J.,  in  Tucker  v.  Cheshire  R.  R.,  1850, 
21  N.  H.  29,  39. 

Contra,  Enfield  Toll-Bridge  Co.  v.  Hartford  ^  N.  H.  R.  R.,  1845,  17 
Conn.  40. 

In  Lake  v.  Virginia  Sf  Truckee  R.  R.,  1872,  7  Nev.  294,  it  was  decided 
that  an  exclusive  toll-bridge  grant,  which  was  made  long  after  railroads 
had  become  a  common  mode  of  transportation,  was  not  infringed  by  the 
erection  of  a  railroad  bridge;  and  this,  although  the  toll-bridge  grant  pro- 


100  ROCKINGHAM. 


Clarke  V.  Little. 


ROCKINGHAM,    FEBRUARY   TERM,    1805. 


Daniel  Clarke  v.  Daniel  Little,  Lem.  Johnson,  and 
Nat.   Webber. 

A.  recovered  judgment  against  B.,  C,  and  D.  B.  was  arrested  on  the  execution 
by  E.,  a  deputy  sherifE,  and  escaped.  A.  sued  the  sheriff,  and  recovered  judg- 
ment for  his  whole  debt,  which  E.  paid. 

Held,  that  E.  could  maintain  assumpsit,  for  money  paid,  against  B.,  C,  and  D. ;  his 
remedy  is  not  against  B.  alone. 

Indebitatus  assumpsit,  to  recover  one  thousand  dollars, 
money  paid,  laid  out,  and  expended  for  defendants  at  their 
request. 

Plea  :    the  general  issue. 

The  following  case  was  agreed  on  for  the  opinion  of  the 
Court. 

One  Edward  Hart  recovered  judgment  and  had  execution 
against  the  defendants.  Little  was  arrested  by  plaintiff,  a 
deputy  sheriff,  and  escaped  from  his  custody.  Hart  sued 
the  sheriff  for  plaintiff's  suffering  the  escape,  and  recovered 
judgment  for  the  full  amount  of  his  debt,  damages,  and  costs; 
which  judgment  has  been  satisfied  by  Clarke,  who  was  answer- 

vided  that  it  shduld  be  unlawful  for  others  to  construct  over  the  river, 
within  the  limits,  "  any  bridge,  ferry,  or  other  public  means  for  the  con- 
veying across  said  river  of  either  persons  or  property." 

But  the  right  to  maintain  a  railroad  bridge  or  ferry  for  the  transporta- 
tion of  railroad  passengers  and  employees  would  not,  as  against  a  prior 
exclusive  grant  of  toll-bridge  or  ferry,  include  the  right  to  permit  persons 
who  were  not  railroad  passengers  or  employees  to  pass  over  gratuitously. 
See  Aikin  v.   Western  R.  R.,  1859,  20  N.  Y.  370. 

Whether  the  excavation  of  a  tunnel  for  passage  under  a  river,  or  the 
establishment  of  a  line  of  balloons  to  fly  over  a  river,  would  infringe  upon 
an  exclusive  ferry  or  bridge  grant,  are  questions  which  have  been  suggested, 
but  are  not  yet  judicially  determined. 


FEBRUARY   TERM,  1805.  101 

Clarke  v.  Little. 

able  to  the  sheriif.  The  plaintiff  afterwards  sued  the  defend- 
ants, in  the  name  of  Hart,  on  the  judgment ;  and,  amongst 
other  pleas,  the  defendants  pleaded  the  judgment,  execution 
issued,  arrest  of  Little  by  Clarke,  Little's  escape,  the  suit 
against  the  sheriff  for  the  escape  as  a  voluntary  one  suffered 
by  Clarke,  judgment  for  the  amount  of  his  [Hart's]  debt  and 
costs,  and  execution  issued  on  that  judgment,  which  has  been 
satisfied  by  the  sheriff.  Issue  was  taken  upon  the  matter  of 
satisfaction,  and  found  for  the  defendants. 

The  objection  to  the  plaintiff's  right  to  recover  [in  the  pres- 
ent action  for  money  paid]  was,  that  he  had  joined  Johnson 
and  Webber  in  the  suit.  The  act  of  Feb.  10,  1791,  Laws,  ed. 
1805,  123,  124,  declares  that,  in  all  cases  where  the  sheriff  or 
other  person  has  been  compelled  to  pay  any  sum  of  money  on 
account  of  any  prisoner's  escape,  he  shall  be  entitled  to  his 
remedy  against  such  prisoner.  As  it  respects  Little,  the  pay- 
ment by  compulsion  of  law  supersedes  the  necessity  of  proving 
a  request ;  but  this  only  applies  to  Little.  In  no  sense  can  it 
be  said  that  Johnson  and  Webber  requested  Clarke  to  pay  the 
debt.  It  was  paid  for  Little,  and  the  remedy  is  against  Little 
only. 

But  The  Court  were  of  opinion  that  the  action  was  main- 
tainable in  its  present  form  against  all  the  defendants ;  and 
that  independent  of  the  statute  cited.  Esp.  612. (a)  At  common 
law,  if  the  sheriff  voluntarily  permits  a  prisoner  to  escape,  and 
is  in  consequence  obliged  to  pay  the  debt,  he  may  maintain  an 
action  for  money  paid,  laid  out,  and  expended,  against  the 
defendant ;  for  he  is  discharged  as  against  the  plaintiff  in  the 
action.  Here  it  is  held  that  the  debtor  is  liable.  Why  ?  Be- 
cause he  is  discharged  as  against  his  creditor.  Why  does  this 
action  lie  against  all  the  defendants  ?  Because  they  are  all, 
by  the  payment  made  by  Clarke,  discharged  as  against  Hart, 
the  creditor.  The  debt  was  not  paid  by  Little's  escape.  But 
Clarke  thereby  became  liable  by  law  to  pay  the  debt  to  Hart. 

(a)  See,  contra,  semble,  Peake,  N.  P.  144,  n.  a. 


102  ROCKINGHAM. 


Clarke  v.  Little. 


This  was  a  payment  without  request  by  any  person ;  but 
clearly  it  was  a  payment  for  the  benefit  of  all  the  defendants, 
because  all  were,  till  payment,  liable  to  Hart.  The  situation 
in  which  plaintiff  stood  as  it  respects  Little  is  equivalent  to 
a  request  of  Little  to  pay.  If  one  of  several  debtors,  jointly 
liable,  request  another  to  pay,  it  is  a  request  by  all ;  because  it 
inures  to  tlie  benefit  of  all.  Johnson  and  Webber  suffer  no 
inconvenience  by  this  doctrine.  With  respect  to  them,  it 
operates  only  as  a  change  of  creditor.  It  has  been  holden 
that,  where  there  are  several  debtors,  and  the  bar  of  the 
statute  of  limitations  has  attached,  a  promise  or  acknowledg- 
ment of  the  debt  by  one  of  the  debtors  revives  the  debt, 
and  makes  them  all  liable. ^    That  is  stronger  than  the  present 

case. 

But  the  case  of  Uxall  v.  Partridge  and  two  others,  8  T.  R. 
308,  (a)  is  decisive  of  the  present  question.  The  case  was  this : 
The  defendants  were  lessees,  by  deed  from  one  Welch,  of  certain 
premises,  and  bound  by  their  covenants  to  pay  the  rent.  Two 
of  the  defendants  afterwards,  with  the  plaintiff's  knowledge, 
assigned  their  interest  to  P.,  their  co-lessee ;  subsequent  to 
which  assignment  the  plaintiff  put  his  carriage  upon  the  prem- 
ises, under  the  care  of  Partridge,  where  it  was  taken  as  a 
distress  for  rent  by  the  landlord,  Welch.  In  order  to  redeem 
it,  the  plaintiff  was  obliged  to  pay  the  rent  due,  taking  a  receipt 
from  the  landlord's  attorney  as  for  so  much  paid  for  the  three 
defendants.  The  action  was  for  money  paid,  laid  out,  and 
expended  for  the  use  of  the  defendants,  to  recover  that  sura. 
The  Court  held  that  all  the  defendants  were  liable,  because 
they  were  originally  liable  to  the  landlord  for  the  rent.  All 
were  bound  by  law  to  pay.  The  plaintiff  paid  the  rent  which 
all  were  bound  to  pay.  The  debt  of  all  was  satisfied,  released 
by  this  payment.  It  was  not  a  voluntary,  but  a  compulsory 
payment.  The  law  implies  a  promise  by  the  three  defendants 
to  pay. 

This  case  runs  on  all-fours  with  the  case  before  the  court. 

(a)   See  this  case,  Hammond  on  Parties,  56. 

1  Contra,  Exeter  Bank  v.  Sullivan,  1833,  6  N.  H.  124. 


FEBRUARY   TERM,  1805.  103 

Clarke  v.  Little. 

All  the  defendants  were  liable  to  Hart  till  plaintiff  paid  the 
debt.  Clarke  has  been  compelled  to  pay  the  debt  of  all  ;  all 
are  discharged  from  Hart.  There  it  was  the  duty  of  Partridge 
to  pay  the  rent  to  Welch.  The  cases  would  compare,  if  in 
this  case  it  were  the  proper  debt  of  Little,  and  Clarke  knew 
that  such  was  the  case ;  but  it  is  conceived  that  the  debt  due 
Hart  was  the  proper  debt  of  all  the  defendants,  in  equity  as 
well  as  law.  The  act  of  Little  here  occasions  this  demand 
in  this  form  ;  i.  e.,  Little's  escape  gives  occasion  to  a  suit  in 
the  name  of  Clarke  instead  of  Hart.  There  the  negligence 
of  Partridge  occasioned  tiie  suit  against  his  co-lessees  who 
were  not  ultimately  liable  ;  they  having  their  remedy  against 
Partridge. 

Judgment  for  plaintiff  (as  it  is  supposed,  by  default)  .^ 

1  "  The  acceptance  of  the  discharge  of  the  original  debt  by  the  defend- 
ant in  execution  may  be  considered  as  a  ratification  of  the  sheriif's  act, 
and  as  equivalent  to  a  prior  request."  Rodman,  J.,  in  Heilerj  v.  Lemley, 
1876,  74  N.  C.  250,  254.  In  the  suit  brought  by  Clarke,  in  the  name  of 
Hart,  upon  the  original  judgment,  all  three  defendants  set  up  the  sheriff's 
payment  as  a  discharge  of  their  original  debt. 

In  Freeman  on  Executions,  §  461,  the  sheriff's  right  to  maintain  an  ac- 
tion, for  money  paid,  against  a  defendant,  is  said  to  be  confined  to  cases 
where  the  sheriff  did  not  assent  to  the  escape. 

As  to  whether  the  sheriff  could  have  enforced  the  original  judgment,  by 
alias  execution  or  otherwise,  for  his  own  benefit,  see  cases  collected  in 
Heileg  v.  Lemley,  uhi  sup.  ;  also  Cheever  v.  Mirrick,  1821,  2  N.  H.  376; 
Freeman  on'Judgments,  §  469. 


104  STRAFFORD. 


Hodgdon  v.  Lougee. 


STRAFFORD,    SEPTEMBER   TERM,    1798. 


Caleb  Hodgdon  v.  Pitt  Lougee.^ 

The  partial  reversal,  on  review,  of  the  result  reached  in  the  original  suit,  does  not 
affect  the  levy  made  under  the  original  judgment;  and  a  levy  on  the  same 
premises,  to  satisfy  the  judgment  rendered  on  reviev?,  has  no  greater  effect 
than  a  levy  on  a  judgment  recovered  in  any  other  action. 

A.  recovered  judgment  against  B  ,  and  levied  execution  on  B.'s  real  estate.  B. 
recovered  judgment  in  review  against  A.,  for  an  amount  equal  to  about  ten- 
elevenths  of  the  damages  included  in  the  original  judgment.  A.  then  mort- 
gaged the  premises  to  C,  who  knew  of  the  judgment  in  review,  and  of  B.'s 
intention  to  levy  on  the  same  premises.  Subsequently,  and  within  the  year 
for  redeeming  from  the  levy  of  A.'s  execution,  B.  levied  on  the  premises. 

Held,  that  C.'s  mortgage  prevailed  over  B.'s  levy. 

This  was  ejectment  for  two  hundred  acres,  viz.,  Lot  No.  55, 
in  Barnstead. 

The  plaintiff  claimed  to  hold  under  deed  of  mortgage  from 
John  Drew,  executed  Sept.  26,  1795,  received  and  recorded 
same  da}',  about  nine  o'clock,  p.m. 

John  Drew's  title  was  by  levy  of  execution  on  judgment 
against  Andrew  Drew  and  Jonathan  Williams,  April  Term, 
1794.  Execution  issued  May  12,  and  was  levied  May  15, 
and  returned  to  the  office  October,  1794.  Damages  recovered 
were  £2,658  Is.  lid.  =  $8,860.32.  J.  Williams  and  A.  Drew 
held  under  the  same  John  Drew  by  deed.  May  29,  1784. 

The  defendant  traced  his  title  from  the  same  John  Drew, 
thus  :  He  held  under  Thomas  Pinkham,  by  deed  executed 
April  6,  1796.  Thomas  Pinkham  held  under  deed  from 
Jonathan  Williams  and  Andrew  Drew,  Feb.  11,  1796.  They 
claimed  the  right  to  convey  the  estate  by  deed  from  John 

1  This  ca.se,  of  earlier  date  than  those  reported  ante,  is  inserted  here 
on  account  of  its  bearing  on  the  next  case,  Haven  v.  Libbey. 


SEPTEMBER   TERM,  1798.  105 

Hodgdon  v.  Lougee. 

Drew,  May  29,  1784,  and  contended  that  their  title  was  not 
defeated  by  the  levy  of  John  Drew  in  May,  and.  completed 
by  return  made  to  the  office  October,  1794,  because  they 
reviewed  the  suit  on  which  that  judgment  was  recovered, 
and  at  September  Term,  1795,  reversed  tlie  judgment  in 
part,  that  is  for  $8,066,  leaving,  of  the  damages,  to  the  original 
plaintiif,  $794  only.  They  obtained  execution  for  this  sum, 
$8,066  damages  and  costs,  and  before  Sept.  28,  1795,  com- 
pleted a  levy  or  relevy  on  the  same  land.  The  officer  entered 
on  the  premises  to  commence  his  levy  about  eleven  o'clock 
at  night  on  Sept.  26.  This  judgment  was  known  to  Hodgdon, 
and  that  it  was  the  intention  of  Drew  and  Williams  to  relevy. 
The  defendant  also  contended  that  this  conveyance  to  Hodgdon 
was  fraudulent,  being  intended  to  cover  the  property  and 
prevent  Andrew  Drew  and  J.  Williams  repossessing  them- 
selves of  it  again. 

[Argument  for  Defendant.] 

1.  The  judgment  in  favor  of  John  Drew,  obtained  in  April, 
1794,  and  to  satisfy  which  the  levy  was  made,  has  been  found 
to  be  erroneous,  at  least  as  to  ten-elevenths  of  the  damages 
recovered.  If  it  had  been  reversed  in  whole,  this  would  have 
destroj^ed  the  levy.  The  effect  of  a  reversal  on  review  must 
be  similar  to  that  of  a  reversal  on  a  writ  of  error. 

It  may  be  said  that  this  could  not  be  the  case  where  goods 
were  sold,  and  the  debt  levied  by  the  sale  of  them.  Perhaps 
the  officer  would  be  justified  for  selling  the  goods ;  but  the 
creditor  would  clearly  be  obliged  to  refund  the  value,  —  either 
on  suit  brought,  or  execution,  by  way  of  being  restored  to 
what  he  had  lost. 

If  lands  were  taken,  the  easiest  way  of  restoring  the  person 
injured  by  the  erroneous  judgment  would  be  to  declare  the 
levy  void.  So,  if  the  body  were  holden,  this  must  be  the  case  ; 
otherwise  both  parties  might  be  imprisoned  for  damages  which 
never  ought  to  have  been  given. 

2.  But,  if  it  should  be  thought  a  reversal  in  part  was  so  far 
of  the  nature  of  an  original  suit  that  the  plaintiff  in  review 


106  STRAFFORD. 


Hodgdon  v.  Lougee. 


could  only  have  execution  for  the  sum  recovered  back,  still 
it  may,  in  the  second  place,  be  argued  that  the  relevy  in  this 
case  destroyed  the  levy,  because  it  was  made  before  an  in- 
defeasible estate  vested  in  the  execution  creditor.  The  other 
party,  that  is,  in  this  case,  Drew  and  Williams,  may  redeem 
at  any  time  within  a  year  from  the  return  of  execution  into 
the  office,  that  is,  till  the day  of  October,  1795.  Discount- 
ing, or  even  the  offer  to  discount,  the  amount  of  the  levy  on 
the  execution  was  equivalent  to  a  redemption,  and  this  dis- 
count was  made  before  the  year  expired.  It  may  be  said  that 
John  Drew  had,  before  that  time,  sold  the  premises  to  the 
plaintiff.  But  he  could  not  sell  a  perfect  estate  when  he 
had  only  a  defeasible  one;  and  it  must  be  admitted  that  a 
payment  of  the  sum  at  which  the  land  was  appraised,  and 
interest,  to  John  Drew,  would  have  defeated  the  title  of 
Hodgdon.  To  Hodgdon,  then,  it  is  the  same  thing  whether 
this  redemption  be  by  payment  of  money,  or  discount  on 
execution.  Unless  this  construction  be  admitted,  complete 
justice  cannot  be  done.  The  defendant  loses  his  land  upon 
an  erroneous  judgment,  and  it  is  to  no  purpose  that  he  has 
execution  against  John  Drew.  He  never  can  obtain  satis- 
faction. It  may,  I  think,  be  fairly  argued  that,  until  the 
expiration  of  the  year,  the  creditor  only  holds  the  land  as 
a  pledge  or  security  for  his  debt.  If  this  be  so,  is  not  bring- 
ing the  judgment  of  a  Court,  declaring  that  the  debt  for 
which  the  pledge  is  taken  is  not  due,  equivalent  to  payment 
of  the  debt  ? 

3.  But  this  may  be  considered  as  fraudulent  in  Hodgdon. 
He  purchases  when  he  knows  the  title  is  defeasible,  and  when 
he  knows  that  Drew  and  Williams  have  an  equitable  right  to 
the  land. 

The  Court  were  of  opinion  that  the  evidence  in  this  cause 
did  not  support  the  charge  of  fraud  ;  that  the  plaintiff,  having 
a  demand  against  John  Drew,  had  a  right  to  take  this  land 
in  security  ;  and  that  he  took  it  subject  only  to  be  defeated 
by   redemption,    which    could   only    be    by    the    payment   of 


SEPTEMBER   TERM,  1798.  107 

Hodgdon  V.  Lougee. 

principal  and  interest  in  money  ;  that  a  relevy  was  not  a 
redemption,  and  consequently  that  the  plaintiff  was  entitled 
to  recover. 

The   jury   were   of  that  opinion,  and  found  the   defendant 

guilty,  (a) 

[  Conditional  judgment  for  plaintiff. '\ 

[Abstract  of  the  above  Decision  in  Manuscript  Digest.] 

"  When  a  creditor  acquires  a  title  by  levy  of  execution,  he 
may  sell  before  the  year  expires ;  and  the  purchaser's  title 
is  not  affected  by  reversal  on  review  in  part  or  in  whole  (as 
it  would  be  on  error),  but  only  by  redemption.  A  levy  within 
the  year  by  the  debtor  against  the  creditor  is  not  equivalent 
to  a  redemption,  as  it  respects  a  purchaser  under  the  first 
levy.  A  purchase  by  a  bond  fide  creditor  is  not  fraudulent  as 
against  the  former  owner,  though  the  purchaser  knew  of  the 
reversal  of  the  judgment  in  part,  and  intention  to  levy." 

[Extract  from  Judge  Smith's  Manuscript  Essay  on  the  Act 
Relative  to  Levy  of  Executions  on  Lands,  passed  Feb.  15, 
1791.] 

"  It  has  been  determined  in  this  State  (Strafford,  February 
Term,  1798,  or  September,  1798,  Hodgdon  v,  Lougee)  that 
a  reversal  of  a  judgment  on  review  in  part  does  not  affect 
a  levy  under  the  judgment  so  reversed.  And  it  seemed  to 
be  the  opinion  of  the  Court  that  a  total  reversal  on  review 
would  not  at  all  affect  the  levy  ;  that  the  only  remedy  of  the 
party  obtaining  the  reversal  was  his  execution  to  recover  back 
the  debt  levied  on,  which  he  might  levy  on  the  same  estate 
if  not  conveyed  by  the  creditor. 

"  It  seemed  also  to  be  settled  in  that  case  that  a  sale  by 
execution  creditor  before  the  right  of  redemption  was  gone 
was  good,  and  placed  the  grantee  precisely  on  the  ground  his 
grantor  stood  on. 

(a)  See  Prov.  Law,  145,  last  clause.  Judgment  recovered  without 
actual  notice  to  defendant,  and  levy;  defendant  having  review  within  a  year. 
In  such  case,  the  land  levied  on  not  alienable  till  after  one  year,  or  new  trial; 
implying  that,  in  other  cases,  the  laud  levied  on  is  alienable  immediately. 


108  STRAFFORD. 

Hodgdon  v.  Lougee. 

"  Qucere.  Can  original  creditor,  on  total  reversal,  within  a 
3'ear,  on  review  brought  by  the  debtor,  hold  the  land  in  suit 
by  the  debtor  against  him  ?  It  seems  unreasonable  to  say 
tliat  he  may.  It  is  a  different  consideration,  perhaps,  where 
the  creditor  has  transferred  his  title  acquired  by  the  levy." 

[Judge  Smith's  Note  to   thk  Manuscript   Report   of   Footman  v. 
Leathers  et  als.,  Strafford,  September  Term,  1803. i] 

"  A  redemption,  it  is  conceived,  would  inure  to  the  benefit 
of  Jonathan  Williams  alone,  even  if  the  redemption  were  with 
the  money  of  Andrew  Drew. 

"  The  mere  levy  on  judgment.  Drew  and  Williams,  would 
vest  lands  levied  on  in  Drew  and  Williams. 

"And  it  may  be  questioned  whether  a  relevy  alters  the 
case.  On  first  levy  Jonathan  Williams  had  claim  against 
Andrew  Drew  for  excess  above  moiety  satisfied  out  of  his 
estate.  In  the  judgment  on  review,  both  original  defendants 
interested ;  consequently  both  interested  in  the  avails  of  the 
judgment.  Relevy  is  not  a  remitter  to  first  title.  It  is  the 
acquisition  of  a  new  title,  especially  if  equity  of  redemption 
expired.  Reversal  on  error,  or  redemption,  is  different;  there 
the  judgment  and  levy  are  avoided,  and  things  are  as  though 
no  such  judgment  had  been  given,  or  levy  made. 

"And  yet  this  doctrine,  that  the  property  vests  equally  in 
the  persons  named  in  the  judgment,  in  case  of  a  review  where 
the  first  judgment  was  satisfied  by  one  of  the  parties,  or  in 

^  Under  the  two  judgments  in  the  suit,  Drew  v.  WUUams  and  Drew, 
there  appear  to  have  been  a  levy  and  a  relevy  on  several  tracts  of  land. 
The  case  of  Footman  v.  Leathers  et  als.  is  understood  to  have  grown  out 
of  such  levy  and  relevy  on  land  in  Lee.  Upon  the  trial  it  appeared  that 
Jonathan  Williams  owned  the  premises  at  the  time  of  the  original  levy. 
The  Court,  speaking  of  the  effect  of  the  levy  under  the  judgment  in  re- 
view, said,  that  it  was  "  at  least  reasonable  that  the  levy  should  give  the 
whole  land  to  Jonathan  Williams,  because  on  the  judgment  in  the  same 
suit  it  was  taken  from  him." 

It  is  believed  that  it  was  not  directly  decided  in  that  case  whether  the 
levy  on  the  judgment  in  review,  in  favor  of  Andrew  Drew  and  Jonathan 
Williams,  gave  Jonathan  Williams  the  whole  land,  or  only  a  title  to  a 
moiety. 


FEBRUARY   TERM,  1805.  109 

Haven  v.  Libbey. 

any  other  case  where  the  parties,  are  unequally  interested  in 
the  judgment,  would  operate  unjustly.  The  moiety  of  the 
creditor,  who  in  equity  had  no  claim,  might  be  taken  by  his 
other  creditors.  The  ground  of  issuing  execution  in  the  case 
of  review  is  that  there  has  been  satisfaction.  He  that  made 
the  satisfaction  ought  in  equity  to  receive  the  avails.  And 
yet  this  would  be  difficult  in  practice."  ^ 


STRAFFORD,    FEBRUARY    TERM,   1805. 


Joseph   Haven  v.   Polly  Libbey,   Administratrix   of 
Dajstiel   Libbey,   Plaintiff  in  Review. 

The  partial  reversal,  on  review,  of  the  result  reached  in  the  original  suit,  does  not 
affect  the  levy  made  under  the  original  judgment ;  and  a  levy  on  the  same 
premises,  to  satisfy  the  judgment  rendered  on  review,  has  no  greater  effect  than 
a  levy  on  a  judgment  recovered  in  any  other  way. 

A.  recovered  judgment  against  B.,  and  levied  execution  on  B.'s  real  estate.  C. 
then  attached  the  Remises  in  a  suit  against  A.  B.  subsequently  recovered 
judgment  in  review  against  A.,  and  levied  on  the  same  land,  with  knowledge 
of  C.'s  attachment. 

Held,  that  C.'s  attachment  took  precedence  of  B.'s  levy. 

The  original  action  was  ejectment,  to  recover  land  in  Dur- 
ham. 

The  plaintiff  claimed  by  virtue  of  levy  of  execution  on  the 
premises  as  John  Drew's  property.  Attachment  on  mesne 
process,  July  25,  1795.  Judgment  at  Strafford,  May  Term 
(24th),  1796  ;  and  levy  made,  and  seisin  delivered,  June  21, 
1796. 

John  Drew's  title  was  by  levy  of  execution  on  a  large  tract, 
of  which  the  premises  are  a  part.  Judgment  was  rendered  at 
Strafford,  April  Term,  1794,  against  Jonathan  Williams  and 
Andrew  Drew,  for  £2,658.     Levy  was  made  April  28,  1794. 

^  As  to  reviews,  see  note  to  Haven  v.  Libbey,  reported  ^os^ 


110  STRAFFORD. 


Haven  v.  Libbey. 


One  source  of  title  set  up  by  the  defendant  was  a  deed 
from  Jonathan  Williams  to  D,  Libbey  (defendant),  dated 
June  19,  1798.  A  judgment  was  shown,  Superior  Court, 
Strafford,  September  Term,  1795,  reversing  in  part  the  judg- 
ment tTohn  Drew  v.  Jonathan  Williams  and  Andrew  Drew  ;  and 
Sept.  28,  1795,  there  was  a  levy  or  relevy  on  the  premises  to 
satisfy  the  execution  which  issued  in  favor  of  Jonathan  Wil- 
liams and  Andrew  Drew.  [This  was  undoubtedly  the  same 
judgment  in  review  which  is  more  particularly  described  in 
Hodgdon  v.  Lougee,  reported  ante."]  ...  It  was  clear  that 
Libbey,  when  he  purchased,  and  Jonathan  Williams,  when  he 
relevied  and  conveyed,  knew  of  John  Drew's  title,  and  of 
Haven's  attachment  and  levy.  Libbey  was  an  appraiser  for 
Haven  in  1796. ^ 

The  Court  said  the  reversal  on  review,  in  part  or  even  in 
whole,  of  the  judgment.  Drew  v.  Williams  <f  Drew^  which 
was  satisfied  by  levy  under  which  plaintiff  claims,  does  not 
affect  the  first  levy  ;  and  the  relevy,  as  it  is  called,  has  precisely 
the  same  effect  as  a  levy  on  a  judgment  recovered  in  any 
other  way.  Plaintiff  having  attached  premises  before  the 
levy  or  relevy  by  Williams  and  Drew  in  September,  1795, 
recorded  February,  1796,  Jonathan  Williams,  with  a  knowl- 
edge of  that  attachment,  could  not  defeat  it  by  levy  on  the 
same  land.  When  Haven  levied  in  June,  1796,  it  related  back 
to  the  attachment  in  July,  1795. 

The  jury  found  for  the  plaintiff  Haven. 

Motion  to  set  the  verdict  aside  refused. 

[Judgment  for  Haven.'\  ^ 

[Portions  of  the  manuscript  report  which  do  not  relate  to 
the  above  question  have  been  omitted.] 

^  Statement  condensed  by  compiler. 

2  A  partial  reversal,  on  review,  of  the  result  reached  in  the  original  suit, 
does  not  operate  as  a  technical  reversal  of  the  original  judgment.  Debt 
may  be  maintained  on  the  original  judgment,  notwithstanding  the  result 
of  the  review.  Hart  v.  Little,  Rockingham,  February  Term,  1804,  re- 
ported ante.  Nor  does  such  a  partial  reversal  on  review  affect  a  levy  on 
real  estate  in  satisfaction  of  the  original  judgment.     Webber  v.  Sargent, 


FEBRUARY   TERM,  1805.  Ill 


Haven  v.  Libbey. 


1802,  5  Dane,  Abr.  220.  Where  the  original  defendant  obtains  judg- 
ment on  review,  a  relevy  by  him  on  the  same  real  estate  which  was  taken 
from  him  by  the  levy  under  the  original  judgment  will  not  prevail  as 
against  a  mortgage  executed  by  the  original  plaintiff  during  the  pendency 
of  the  review:  Hodgdon  v.  Lougee,  Strafford,  September  Term,  1798,  re- 
ported ante ;  nor  as  against  an  attachment  made  during  the  pendency  of 
the  review,  to  secure  a  debt  due  from  the  original  plaintiff :  Haven  v.  Lib- 
bey, reported  above;  nor  will  such  relevy  defeat  the  right  to  dower,  on  the 
part  of  the  wife  of  the  original  plaintiff:  Drew  v.  Munsey,  Strafford, 
November  Term,  1814,  reported  jaosL 

In  Little  v.  Bunce,  1835,  7  N.  H.  485,  492,  Richardson,  C.  J., 
thought  it  had  not  been  settled  in  this  State,  whether  the  judgment  on 
review  had  the  same  effect  on  the  original  levy  as  a  judgment  of  reversal 
upon  a  writ  of  error  would  have.  But  the  eminent  counsel  for  the  de- 
fendant in  that  case  understood  the  New  Hampshire  rule  to  be,  that  the 
levy  was  not  affected  by  the  judgment  in  review :  p.  490.  For  later  opinions 
in  the  same  direction  with  the  cases  reported  in  the  present  volume,  see 
Parkek,  C.  J.,  in  Knox  v.  Knox,  1841,  12  N.  H.  352,  357;  Fowler,  J., 
in  Badger  v.  Gilmore,  1859,  37  N.  H.  457,  459;  Sargent,  J.,  in  Wiggin 
V.  Jancrin,  1867,  47  N.  H.  295,  296;  Foster,  J.,  in  Sanford  v.  Candia, 
1874,  54  N.  H.  419,421. 

In  Curtis  v.  Curtis,  1860,  47  Me.  525,  the  principle  of  Haoen  v.  Libbey 
was  applied  in  the  case  of  a  total  reversal  of  the  original  result.  In  the 
original  suit,  judgment  had  been  rendered  for  the  plaintiff,  and  satisfied  by 
levy  on  real  estate.  This  real  estate  was  conveyed  by  the  plaintiff  during 
the  pendency  of  the  review.  Subsequently  the  original  defendant  obtained 
judgment  on  review  for  the  full  amount  of  the  judgment  which  had  been 
recovered  against  him  in  the  original  action.  Held,  that  this  did  not  in- 
validate the  title  of  the  grantee  under  the  original  plaintiff.  This  doctrine 
is,  of  course,  inapplicable  to  fraudulent  conveyances.  If  the  land  levied  on 
to  satisfy  the  original  judgment  is  conveyed  by  the  original  plaintiff  with- 
out consideration,  after  judgment  against  him  on  review,  such  conveyance 
is  fraudulent,  and  invalid  as  against  a  levy  under  the  judgment  in  review: 
Footman  v.  Leathers,  Strafford,  September  Term,  1803,  2  Manuscript  Re- 
ports, 183 ;  and  so  of  such  a  conveyance  of  other  real  estate  during  the 
pendency  of  the  action  of  review:  Parsons  v.  McKnight,  1835,  8  N.  H.  35. 

"  If  the  original  action  is  for  the  recovery  of  land,  and  the  plaintiff  ob- 
tains judgment,  a  recovery  by  the  defendant,  upon  review,  operates  more 
nearly  like  a  technical  reversal.  The  defendant  has  judgment  for  the  laud, 
or  for  that  part  of  it  to  which  it  appears  he  has  title,  and  he  has  a  writ  of 
possession."     Parker,  C.  J.,  in  Otis  v.  Currier,  1846,  18  N.  H.  So,  87. 

In  Clarey  v.  Marshall's  Heirs,  1836,  4  Dana,  95,  and  Debell  v.  Fox- 
worthy's  Heirs,  1848,  9  B.  Mon.  228,  the  facts  were  as  follows:  A. 
had  obtained  a  decree  in  equity  against  B.  for  the  conveyance  of  certain 
real  estate,  and  a  conveyance  had  been  executed  in  conformity  thereto. 


112  STRAFFORD. 


Haven  v.  Libbey. 


B.  subsequently  brought  a  bill  of  review,  to  correct  errors  of  law  apparent 
on  the  face  of  the  record,  and  obtained  a  decree  essentially  modifying  the 
original  decree.  After  the  original  decree,  and  before  the  filing  of  the  bill 
of  review,  C.  purchased  of  A.  part  of  the  real  estate  conveyed  to  hira  under 
the  original  decree.  It  was  held,  that  C.  must  be  regarded  as  a  purchaser 
pendente  lite,  and  that  he  was  bound  by  the  decree  rendered  on  the  bill  of 
review.  But  the  bill  of  review  sought  a  very  different  object  from  a  writ  of 
review  under  our  statute.  It  was  not  an  application  for  a  new  trial  of  the 
facts,  but  was  brought  to  correct  errors  of  law  apparent  on  the  face  of  the 
record.  Upon  the  review  (6  J.  J.  Marsh.  448),  the  Court  held,  that  only 
questions  of  law  arising  on  the  record  were  presented,  and  that  an  answer 
bringing  forward  matters  of  fact  existing  at  the  date  of  the  original  decree 
must  be  rejected.  "  It  in  effect  sought  nothing  more  than  would  have  re- 
sulted from  a  writ  of  error  to  the  appellate  court  .  .  .  ;  not  seeking  a  re- 
hearing, but  a  reversal  of  the  decree  for  error  apparent  in  the  record,  and 
such  alteration  of  the  decree  as  was  necessary  for  the  correction  of  the 
error."     See  Bartlett  v.  Fifield,  1863,  45  N.  H.  81. 

As  to  the  judgment  upon  review  of  a  real  action  founded  upon  a  mort- 
gage, see  Otis  v.  Currier,  1846,  18  N.  H.  85,  87,  88. 

The  original  judgment  operates  as  a  final  judgment,  so  far  as  relates  to 
the  discharge  of  security  taken  in  the  original  suit.  Sureties  on  a  replevin 
bond  in  the  original  action  are  not  responsible  in  consequence  of  a  judg- 
ment rendered  on  review:  Bell  v.  Bartlett,  1834,  7  N.  H.  178;  nor  bail  in 
the  original  action:  Rhoads  v.  Ayer,  Grafton,  May  Term,  1809,  14  Manu- 
script Reports,  17;  Swetl  v.  Sullivan,  1811,  7  Mass.  342;  nor  indorsers  of 
the  original  writ:  Chace  v.  Ellis,  Cheshire,  October  Term,  1803,  2 
Manuscript  Reports,  247;  Ely  v.  Forward,  1810,  7  Mass.  25;  Sanford  v. 
Candia,  1874,  54  N.  H.  419;  nor  is  property  attached  on  the  original  writ 
holden  to  satisfy  a  judgment  rendered  on  review:  Clapp  v.  Bell,  1808,  4 
Mass.  99 ;  Camp  v.  Hilliard,  1876,  58  N.  H.  42. 

The  proceeding  of  review  cannot  be  considered  as  "pending"  before 
the  suing  out  of  the  writ  of  review:  Badger  v.  Gilmore,  1859,  37  N.  H.  457; 
nor  will  permission  given  to  a  third  person  to  defend  the  original  suit  au- 
thorize him  to  bring  a  writ  of  review:  Pike  v.  Pike,  1852,  24  N.  H.  384. 
Bellows,  J.,  in  Barker  v.  Barker,  1859,  39  N.  H.  409,  410.  (But  see 
Fuller  v.  Storer,  1873,  111  Mass.  281.)  If  the  parties  in  the  original  suit 
make  an  agreed  case  "  for  the  purposes  of  this  suit,"  it  will  not  be  evi- 
dence in  a  jury  trial  upon  review.     Page  v.  Brewster,  1877,  58  N.  H.  126. 

Although  the  original  judgment  is,  for  some  purposes,  regarded  as  a 
♦•  final  "  judgment,  yet  it  is  the  judgment  on  review,  and  not  the  original 
judgment,  which  operates  as  a  conclusive  estoppel  between  the  parties  in 
other  proceedings  :  Stevens  v.  Sabin,  1847,  20  N.  H.  529.  If  a  review  is 
pending,  the  original  judgment  will  not  be  regarded  as  establishing  the 
plaintiff's  right  at  law,  so  as  to  entitle  him  to  an  injunction  in  equity: 
Eastman,  v.  Amoskeag  Co.,  1866,  47  N.  H.  71;  nor  will  the  original  judg- 


FEBRUARY   TERM,  1805.  113 


Frost  V.  Brown. 


John  Frost  v.   Josiah   Brown,   Trustee   of  Michael 

Ryan. 

Where  a  minor  lias  contracted  for  his  own  services,  and  his  employer  has  agreed 
to  pay  him  therefor,  his  earnings  cannot  be  attached,  on  trustee  process,  by  a 
creditor  of  his  father. 

On  trial,  before  the  jury,  of  the  issue  whether  trustee  or  not, 
the  evidence  was  that  defendant  acknowledged  he  owed  John 
Ryan,  son  of  Michael  Ryan,  the  principal  debtor,  for  services 
performed  by  John  Ryan,  who,  it  was  agreed,  was,  at  the  time 
of  performing  the  3ervice,  under  the  age  of  twenty-one. 
There  was  no  evidence  that  the  son  was  hired  by  the  father 
to  Brown,  or  that  any  contract  had  ever  been  made  between 
Brown  and  Michael  Ryan,  respecting  hiring  the  son.  It  was 
admitted  that  the  son  contracted  with  Brown  for  himself,  and 
that  Brown  had  agreed  to  pay  the  son  for  his  labor. 

[Jonathan  Steele,  for  plaintiff. 
Jeremiah  Mason,  for  trustee.] 

The  Court  were  clearly  of  opinion  that  this  evidence  did 
not  prove  Brown  indebted  to  Michael  Ryan.  The  creditors 
of  Michael  Ryan  have  a  right  to  attach  debts  due  him,  but 

ment  operate  as  an  estoppel  between  the  same  parties  in  another  suit ; 
Haynes  v.  Ordivay,  1870,  52  N.  H.  284.  (As  to  whether  the  pendency  of 
an  appeal  has  the  same  effect,  in  this  respect,  as  the  pendency  of  a  review, 
see  cases  cited  in  Freeman  on  Judgments,  §  328.) 

In  Sicett  V.  Sullkan,  1811,  7  Mass.  342,  346,  347,  Parsons,  C.  J., 
speaks  of  the  statutory  review  as  a  "  singular  process,"  "  unknown  at  the 
common  law."  In  Rhoads  v.  Ayer,  Grafton,  May  Term,  1809,  14  Manu- 
script Reports,  17,  27,  Smith,  C.  J.,  said,  "  The  New  England  States  are 
the  only  ones  where  this  absurd  doctrine  of  reviews  of  course,  i.  e.  of  right 
judgments  as  well  as  of  wrong,  prevails." 

The  abolition  of  this  absurdity  was  very  forcibly  recommended  by 
Governor  Prescott,  in  the  annual  message  of  1877  ;  and  it  was  finally  ac- 
complished by  a  statute  passed  in  1878.     Laws  of  1878,  c.  64. 

8 


114  STRAFFORD. 


Frost  V.  Brown. 


not  debts  due  his  children.  The  father  may,  if  he  please,  put 
his  children  out  to  service,  and  take  the  wages,  if  such  is  the 
contract.  But  his  creditors  cannot  compel  him  to  compel  his 
children  to  labor  for  his  creditors.  He  is  not,  in  this  case, 
equitably  entitled  to  the  wages  earned  by  the  son,  and  that  is 
a  sufficient  answer  to  the  present  plaintiff's  demand  upon 
Brown. 

The  plaintiff  became  nonsuit  as  it  respects  the  trustee. 

(And  it  was  said  there  was  no  action  pending  against  the 
principal  in  this  Court.)  ^ 

[Abstract  of  the  above  Decision  in  Manuscript  Digest.] 

"  A  sum  due  the  son  of  the  principal  debtor,  under  twenty- 
one,  for  labor  under  contract  made  with  the  son,  is  not  attach- 
able for  a  debt  due  the  father.  It  is  not  equitably  due  him, 
even  if  he  could  recover  it  at  law."  ^ 

1  By  the  record  it  would  appear  that  the  action  was  brought  against 
the  trustee,  and  not  against  the  principal  debtor;  but  that  the  declaration 
contained  a  full  statement  of  Frost's  claim  against  Ryan,  followed  by  an 
ad  damnum.  And  it  is  also  stated  that  "the  said  Michael  Ryan,  prin- 
cipal, being  three  times  solemnly  called,  appeared  not,  but  made  default." 

2  In  Johnson  v.  Sil.shee,  1870,  49  N.  H.  543,  it  was  held,  that  the  relin- 
quishment, by  a  father,  to  his  minor  child,  of  the  right  to  the  future  earn- 
ings of  the  child,  is  valid  against  the  existing  creditors  of  the  father. 
Besides  the  cases  there  cited,  see  an  able  decision  to  the  same  effect  in 
Alwoodv.  Jlolcomb,  1872,  39  Conn.  270;  s.  c.  12  Am.  Law  Reg.  N.  8. 
715;  and  also  Dierker  v.  Hess,  1873,  54  Mo.  246,  250. 

The  New  Hampshire  statute  of  187G,  c.  14,  provides  that  no  trustee 
shall  be  charged  on  account  of  the  personal  services  or  earnings  of  the 
minor  children  of  the  defendant.     Gen.  Laws,  c.  249,  §  40. 


MAY   TERM,  1805.  115 


Bellows  V.  Grant. 


CHESHIRE,   MAY   TERM,    1805. 


Caleb   Bellows,  Appellant,  v.  Samuel  Grant,  Appellee. 

It  seems  that  the  Probate  Court,  in  making  partition  of  real  estate  among  heirs, 
may  determine  whether  certain  real  estate,  claimed  by  one  of  the  heirs  as  hia 
own,  did,  in  fact,  belong  to  the  intestate  at  the  time  of  his  death. 

In  this  case,  the  Superior  Court,  upon  an  appeal  from  the  Probate  Court,  delayed 
rendering  judgment  until  the  claimant  had  tried  the  title  in  a  suit  at  law. 

This  was  an  appeal  from  the  decree  of  the  judge  of  pro- 
bate, making  division,  partition,  or  distribution  of  the  estate 
of  Benjamin  Bellows,  deceased  intestate,  among  the  heirs,  viz. 
the  appellant,  and  the  appellee,  in  right  of  his  wife.  Both 
applied  for  division.  The  decree  was  made  May  10,  1^04  ; 
the  same  day  appeal  claimed  and  allowed. 

The  objection  to  the  allowance  of  the  return  of  the  five 
freeholders  who  made  the  division,  and  now  insisted  on,  was 
that  they  took  into  consideration  (and  divided  unequally) 
certain  estate  which  did  not  belong  to  the  intestate  at  the 
time  of  his  death,  he  having  before  conveyed  it  by  deed  of 
bargain  and  sale  to  the  appellant,  (a) 

It  was  objected,  on  the  part  of  the  appellee,  that  the  Su- 
preme Court  of  Probate  is  not  competent  to  decide  this  ques- 
tion ;  it  must  be  tried  at  law. 

But  The  Court  inclined  to  a  different  opinion.  They  have 
the  power  to  divide  and    distribute  the    estate  of  the  intes- 

(a)  It  was  not  contended  that  the  division  (supposing  this  parcel 
belonged  to  the  intestate's  estate)  was  unequal.  The  inequality  com- 
plained of  was  in  dividing  estate  belonging  to  one  of  the  heirs  with  the 
intestate's  estate.  If  this  estate  had  been  separately  divided,  perhaps 
redress  could  be  had  at  law;  but  here  it  was  unequal,  —  a  larger  portion  of 
it  was  assigned  to  the  heir  who  claimed  it  as  his  own;  consequently  he  had 
too  little  of  the  estate  which  really  belonged  to  the  deceased. 


116  CHESHIRE. 


Bellows  i».  Grant. 


tate  among  the  heirs  (certainly  that  of  which  he  died  pos- 
sessed). How  can  they  divide  the  estate  without  determining 
what  the  estate  is,  and  the  value  of  each  part ;  who  the  heirs 
are,  and  to  what  proportion  each  is  entitled  ?  It  is  declared 
in  the  statute  (N.  H.  Laws,  ed.  1805,  171,  172)  that  the 
division  shall  be  valid.  It  must,  at  least,  be  valid  as  among 
the  heirs  (unless  some  after-event  shall  render  it  unequal). 
Perhaps,  if  the  lands  of  a  stranger  are  divided  unequally,  in 
case  of  eviction,  the  heir  who,  by  means  thereof,  has  less  than 
his  share,  may  have  redress,  —  perhaps  a  new  division.  How 
can  the  appellant  sue  for  what  is  here  allotted  to  himself? 
Defendant  will  disclaim.  If  he  sue  for  that  part  which  is 
allotted  to  appellee,  and  can  recover  and  does  recover,  still  he 
may  be  injured,  because  more  than  half  may  have  been 
assigned  to  himself.  This  question  must  be  settled  before  this 
decree  can  be  affirmed  or  reversed. 

It  is  no  objection  to  say  that  the  distributors,  judge  of  pro- 
bate, and  Supreme  Court  of  Probate,  in  this  way  judge  of  and 
determine  titles  to  real  estate.  This  is  done  in  every  probate 
of  a  will. 

But  the  Court  are  not  obliged  to  decide  the  question.  They 
may  perhaps  direct  an  issue  to  be  tried  in  the  Superior  Court, 
whether  Benjamin  Bellows  died  seised  of  the  lands  thus 
claimed  by  the  appellant.  Or  they  may  suspend  rendering 
judgment  on  this  appeal  till  the  appellant  has  tried  the  title 
in  course  of  law. 

This  latter  course  was  adopted  at  the  last  Term  ;  and  a 
verdict  having  at  this  Term  been  given  in  favor  of  defendant, 
appellee,  and  judgment  rendered  thereon,  this  decree  was 
affirmed  without  opposition.^ 

*  By  two  statutes  enacted  on  the  same  day,  Feb.  3,  1789,  the  judge  of 
probate  was  empowered  to  order  a  division  of  real  estate  among  co-heirs 
and  co-devisees.  And  by  a  statute  enacted  on  the  following  day,  Feb.  4, 
1789,  he  was  empowered  to  order  a  division  "  upon  the  application  of  any 
person  or  persons,  interested  with  others  in  any  lot,  tract,  or  parcel  of 
land,  or  other  real  estate."  N.  H.  Laws,  ed.  1815,  200,  201,  209,  210, 
221.  None  of  these  acts  contained  any  limitation  of  the  jurisdiction  in 
consequence  of  dispute   about  the  title,  except  in  the  case   of  divisioa 


MAY   TERM,   1805.  117 


Bush  V.  Mason. 


GRAFTON,  MAY  TERM,  1805. 


Eleazer  Bush  v.  Jonathan  Mason,  Appellant. 

Judgment  in  audita  querela  —  "that  execution  be  vacated,  the  judgment  liaving 
been  obtained  by  fraud  and  deceit "  —  is  a  bar  to  an  action  of  debt  upon  the 
judgment  thus  impeached. 

This  was  an  action  of  debt  on  a  judgment  rendered  by- 
Constant  Murdoch,  Esq.,  a  justice  of  the  peace  for  the 
County  of  Windsor,  in  the  State  of  Vermont,  on  Aug.  29, 
1801,  for  damages,  127.19,  and  costs,  $3.03.  Execution  issued 
same  day,  and  is  returned  in  no  part  satisfied. 

The  defendant,  by  leave  of  court,  pleaded  two  pleas  in  bar. 

I.  The  first  plea  stated  in  substance  that,  after  the  recovery 
of  judgment  stated  in  the  plaintiff's  declaration,  the  defendant 
brought  an  audita  querela  to  the  County  Court  of  said  County 
of  Windsor,  at  March  Term,  1802  ;  wherein  he  complained 
against  the  now  plaintiff,  and  said  that,  on  the  twenty-nintli 

among  co-devisees.  N.  H.  Laws,  ed.  1815,  201,  §  10.  In  the  Manuscript 
Treatise  on  Probate  Law,  the  author  says,  .  .  .  "an  opinion  has  pre- 
vailed that  when  application  is  made  for  partition  under  this  act"  (of 
Feb.  4,  1789),  "  and  the  defendant  pleads  sole  seised,  or  denies  the 
petitioner's  title,  that  it  then  becomes  the  duty  of  the  judge  to  dismiss 
the  petition;  his  jurisdiction  being  amicable  only,  not  contentious.  The 
practice  has  been  conformable  to  this  opinion."  This  "opinion"  the 
author  believes  to  be  erroneous,  and  his  reasons  are  given  at  considerable 
length. 

Under  the  present  statutes,  a  dispute  about  the  title  will  not  oust  the 
Probate  Court  of  jurisdiction,  in  a  proceeding  for  partition  between 
co-heirs  or  co-devisees.  Phillips  v.  Perry,  1866,  reported  in  note, 
49  N.  H.  264.  Aider,  in  proceedings  between  other  parties,  if  the  objec- 
tion is  seasonably  taken.  Gen.  Laws,  c.  247,  §  21;  Pickering  v.  Pickering, 
1850,  21  N.  H.  537;  Ela  v.  McConihe,  1857,  35  N.  H.  279;  and  see 
Quimby  v.  Melvin,  1849,  cited  in  22  N.  H.  242. 


118  GRAFTON. 


Bush  V.  Mason. 


day  of  August,  1801,  the  said  now  plaintiff  obtained  a  judg- 
ment in  an  action  by  him  brought  for  the  non-performance 
of  certain  promises  against  the  coniphiinant  for  the  sum  of 
$27.19  damages,  and  $3.03  costs,  by  the  consideration  of  Con- 
stant Murdoch,  Esq.,  one  of  the  justices  of  the  peace  for  the 
County  of  Windsor,  and  thereof  on  the  day  last  aforesaid 
had  execution,  as  appears  from  the  records  of  said  court ;  and 
the  complainant  further  said  that  the  judgment  aforesaid  was 
obtained  by  the  fraud  and  deceit  of  the  said  now  plaintiff,  and 
that,  in  the  rendition  thereof,  the  complainant  had  no  day  in 
court ;  for  that,  on  the  fifteenth  day  of  August  aforesaid,  the 
complainant,  at  the  request  of  the  said  now  plaintiff,  acknowl- 
edged service  on  the  original  writ  in  the  said  action,  and  the 
complainant  said  that  at  the  time  of  acknowledging  service  as 
aforesaid,  said  writ  was  returnable  before  the  said  justice  on 
the  twenty-ninth  day  of  September  then  next,  and  that  after 
the  acknowledgment  of  service,  as  aforesaid,  upon  said  writ, 
and  without  the  knowledge  or  consent  of  the  complainant,  the 
said  now  plaintiff  altered  the  return-da}^  of  said  writ,  by  eras- 
ing the  word  September,  and  inserting,  in  its  stead,  the  word 
August,  whereby  the  said  writ  became  returnable  on  the 
twenty-ninth  day  of  August  instead  of  the  twenty-ninth  day 
of  September,  by  means  of  which  alteration  the  complainant 
was  defaulted  in  the  aforesaid  suit  and  had  no  day  in  court ; 
and  the  complainant  further  said  that  the  said  now  plaintiff 
immediately  put  said  execution  into  the  hands  of  the  sheriff  of 
said  county,  and  the  said  sheriff  now  holds  said  execution,  and 
threatens  to  levy  tiie  same  upon  the  body  or  estate  of  tiie  com- 
plainant, who  has  had  no  day  in  court  to  plead  the  matters 
aforesaid ;  by  all  which  the  complainant,  as  he  said,  was 
greatly  injured  and  aggrieved,  and  had  suffered  damage  the 
sum  of  $100  ;  at  which  said  County  Court  the  said  now  plain- 
tiff appeared  by  his  attorney,  and  defended,  &c.,  when,  &c.,  and, 
for  plea,  said  he  was  not  guilty  of  the  fraud  and  deceit  com- 
plained of  in  the  said  complaint,  and  the  several  allegations 
therein  contained  against  him,  the  said  now  plaintiff,  and 
thereof  he  put  himself  on  the  country  for  trial ;  and  the  now 
defendant,  by  his  attorney,  did  the  like  ;  and  in  the  said  cause 


MAY   TERM,  1805.  119 


Bush  V.  Mason. 


it  was  SO  proceeded  that,  at  the  Supreme  Court  of  Judicature, 
begun  and  holden  at  Woodstock,  within  and  for  the  County 
of  Windsor,  on  the  third  Tuesday  of  Auj^ust,  1804,  for  default 
of  appearance  of  the  said  now  plaintiff,  it  was  considered  by 
the  Court  that  the  said  execution  issued  by  the  said  justice,  as 
aforesaid,  on  the  judgment  aforesaid,  in  favor  of  the  said  now 
plaintiff  against  the  said  defendant,  be  vacated,  set  aside,  and 
held  for  nought,  the  said  judgment  on  which  the  same  issued 
having  been  obtained  by  the  fraud  and  deceit  of  the  said 
Bush,  the  now  plaintiff,  and  the  said  Mason  having  had  no 
day  in  court  to  plead  the  matters  aforesaid  ;  and  that  the  said 
now  defendant  recover,  of  this  now  plaintiif,  five  cents  dam- 
ages, and  his  costs  allowed  and  taxed  at  $61.52,  as  by  the  record 
of  said  court  last  mentioned  appears ;  all  which  the  said  Jona- 
than is  ready  to  verify  ;  wherefore  he  prays  judgment,  &c. 

II.  The  second  plea  in  bar  stated  that  the  judgment  was 
obtained  by  fraud  and  deceit  (the  same  as  that  alleged  in  the 
audita  querela^. 

To  the  first  plea  there  was  a  general  demurrer  and  joinder. 

To  the  second,  the  plaintiff  replied  ;  protesting  that  the 
judgment  was  not  obtained  by  fraud  and  deceit,  and  travers- 
ing the  fact  of  altering  the  return-day  of  the  original  writ ;  on 
which  issue  was  joined,  (a) 

At  this  Term,  the  opinion  of  the  Court  on  the  first  plea  was 
delivered  by  Smith,  C.  J. 

After  stating  the  pleadings,  he  said:  The  question  is, 
whether  the  judgment  in  audita  querela  is  a  bar  to  the  action 
on  the  original  judgment.  In  the  judgment  in  the  audita 
querela,  it  is  declared  that  the  execution  issued  on  the  said 
judgment  be  vacated,  the  judgment  having  been  obtained  by 
fraud  and  deceit  of  the  plaintiff.  What  is  the  legal  effect  and 
operation  of  such  a  judgment  ?  It  may  be  observed,  as  prelim- 
inary to  this  inquiry,  that  the  judgment  in  audita  querela,  having 
been  obtained  in  Vermont  (where  the  original  judgment  was 
obtained),  has  the  same  force  and  effect  as  if  all  the  proceed- 

(a)  As  to  this  plea:  It  is  a  rule  of  law  that  all  persons  are  entitled  to 
contest  the  fairness  of  a  judgment,  when  it  becomes  material  to  them. 
Lord  Mansfield,  2  Wms.  Saund   148  (n.  1). 


120  GRAFTON. 


Bush  V.  Mason. 


ings  had  been  in  this  State,  or  as  such  a  judgment  would  have 
in  Vermont.  No  case  can  be  found  strictly  applicable  to  the 
present,  and  it  is  not  a  little  stiaiige  tliat  cases  of  this  kind 
have  not  occurred.  It  is  conceived,  however,  to  be  extremely 
clear  uj)on  priiicii)le  that  this  judgment  cannot  be  enforced 
after  the  judgment  rendered  in  the  audita  querela.  F.  N. 
B.  285.  Audita  querela  was  the  proper  remedy  to  be  relieved 
against  this  unjust  judgment ;  (a)  it  lies  as  well  before  the 
party  is  in  execution  as  after.  When  it  lies  to  be  relieved 
from  an  unjust  judgment,  perhaps  the  Court  may  (see  F.  N. 
B.  235)  make  the  judgment  {i.  e.  declare  it)  void  ;  yet,  if  they 
do  not  do  so  in  express  terms,  it  is  so  in  effect. 

The  execution  is  vacated,  and  it  is  vacated  on  grounds 
which  would  render  every  other  execution  issuing  on  the 
same  judgment  void.  There  is  a  judgment  of  a  Court  compe- 
tent to  decide  the  question,  that  the  judgment  was  obtained 
by  the  fraud  and  deceit  of  the  plaintiff.  It  is  true  this  judg- 
ment might  have  been  ei)tered  in  a  different  form,  and  per- 
haps it  is  usual  to  add  to  the  entry,  "  that  the  plaintiff  or 
creditor  is  barred  from  any  or  every  execution  whatsoever 
upon  the  judgment."  (6)  But  it  would  be  absurd  to  sa,y  that 
the  execution   which  issued   Aug.  29,   1801,   is  vacated,  but 

(n)  No  doubt  an  action  would  lie  against  B.  for  the  fraud  or  deceit; 
but  this  would,  in  many  cases,  be  inadequate  remedy;  the  sum  of  the  judg- 
ment may  be  large,  and  the  plaintiff  insolvent.  See  F.  N.  B.  Audita 
Querela,  and  Deceit;  and  Corny ns,  Action  of  Deceit;  and  3  Reeves,  Hist. 
Eng.  Law,  57,  &c. ;  2  Reeves,  Hist.  Eng.  Law,  329. 

{Quaere.  Would  this  writ  be  considered  as  a  record  when  service 
acknowledged,  so  as  to  make  Bush  guilty  of  forgery  in  altering  it?  State 
Laws,  ed.  1805,  269.) 

It  would  seem  that  a  writ  of  deceit  is  the  proper  remedy  to  annul  a 
judgment  where  the  defendant  was  not  summoned.     Cro.  Jac.  547. 

Qucere..  Is  not  writ  of  deceit  a  method  of  reversing  a  judgment  in  a 
real  action?     See  3  Blackst.  405;  Booth,  251,  Writ  of  Deceit. 

(6)  2  Wms.  Saund.  148  A,  in  margin.  It  is  said,  audita  querela  lies  to 
discharge  a  judgment  obtained  by  an  administrator,  where,  alter  judgment, 
the  administration  is  repealed.  Here  the  ground  was  that  the  judgment 
was  void;  and  yet  the  entry  is,  that  the  creditor  in  the  judgment  have  no 
execution  against  the  debtor,  or  his  estate,  by  reason  of  the  said  judgment, 
and  that  he  be  restored  to  all  things  which  he  has  lost  by  occasion  of  the 
said  judgment. 


MAY   TERM,  1805.  121 


Bush  V.  Mason. 


that  another  may  issue  at  any  time  after,  which  will  be 
goocU  (a)  and  equally  absurd  to  say  that  the  effect  of  the 
judgment  in  audita  querela  is  to  bar  execution,  but  not  an  ac- 
tion on  the  judgment.  This  would  be  saying  that  the  party 
may  do  that  indirectly  which  he  shall  not  do  directly,  (b) 

Suppose  the  ground  of  audita  querela  is  payment  after  judg- 
ment recovered,  i.  e.  satisfaction  not  by  matter  of  record. 
Would  it  be  pretended,  in  such  a  case,  where  execution  was 
vacated  because  the  judgment  was  satisfied  and  this  matter 
found  and  adjudicated,  as  it  must  be  in  the  audita  querela, 
that  debt  would  He  on  such  a  judgment?  Certainly  not. 
The  satisfaction  by  the  proceedings  in  audita  querela  has  be- 
come matter  of  record,  as  much  so  as  the  judgment  itself. 
Here  it  is  found,  in  a  suit  between  these  parties  (in  reference 
to  the  execution  of  this  very  judgment),  that  it  was  obtained 
fraudulently.  In  law,  every  such  judgment  is  void.  A  writ 
of  error  would  not  answer  the  purpose.  This  judgment  is 
good  on  the  face  of  it.  The  defendant  is  not  obliged  to  prove 
the  fraud  stated  in  his  second  plea,  because  he  has  once 
proved  it  in  a  suit  against  the  same  party,  and  it  has  passed 
into  judgment.  If  this  matter  should  now  be  tried,  and  it 
should  be  found  for  Bush,  there  would  then  be  two  contradic- 
tory decisions  on  the  same  question,  when  it  was  the  only 
question  in  controversy  between  the  parties.  The  effect  of 
this  judgment  in  audita  querela  is  the  same  as  if,  in  express 
terms,  it  had  barred  any  and  every  execution  on  this  judg- 
ment, and  vacated  and  declared  null  and  void  the  judgment 

itself.  ((?) 

Judgment  for  the  defendant.^ 

(a)  This  record  shows  that  every  execution  on  this  judgment  must  be 
set  aside,  and  therefore  it  bars  every  execution  in  the  same  manner  as  if 
it  expressly  barred  them. 

(b)  Arguendo,  1  T.  R.  273;  3  T.  R.  643  ;  2  Wms.  Saund.  101  k; 
4  Burr.  24.51. 

(c)  A  person  cannot  have  an  audita  querela  of  a  matter  which  he  had 


1  In  the  same  direction  is  Miller  v.  Barkeloo,  1857,  18  Ark.  292.  See 
a,\so  Dtvighl  V.  St.  Jokti,  1862,  25  N.  Y.  203;  Saltmarsh  v.  Bower,  1859, 
34  Ala.  613. 

In  Gifford  v.  Wkaleii,  1851,  8  Cush.  428,  there  had  been  no  adjudication 


122  STRAFFORD. 


Twombly  v.  Baker. 


STRAFFORD,    SEPTExMBER   TERM,    1805. 


William    Twombly,   Executor  of    Thomas   Baker,   v. 
James   Baker,    Executor   of   Otis   Baker. 

Assumpsit  lies  for  a  legacy  against  an  executor  ;  but  it  seems  that,  unless  there 
is  a  promise  in  fact,  the  sufficiency  of  the  assets,  if  disputed,  must  be  ascer- 
tained by  previous  proceedings  in  the  Probate  Court. 

A  bequest  of  a  sum  of  money,  to  be  paid  in  three  years  after  the  testator's  de- 
cease, is  a  vested  legacy  ;  and,  if  the  legatee  die  before  the  expiration  of  the 
three  years,  the  money  will  go  to  his  representative. 

This  was  an  action  of  assumpsit  for  a  legacy  of  -$333.34, 
given  b}^  the  will  of  Otis  Baker  to  Thomas  Baker,  payable  in 
three  years  from  the  decease  of  the  testator,  Otis  Baker. 

The  declaration  stated  that  the  will  was  made,  Oct.  23, 1801, 
and  that  the  testator  died  four  days  afterwards ;  that  the  will 
was  dul}^  proved  by  the  executor,  Dec.  12,  1801  ;  that  there 
was  sufficient  estate  to  pay  all  the  debts  and  legacies ;  that, 

an  opportunity  of  taking  advantage  of  before  and  had  omitted.     12  Mod. 
584. 

1  G.  Bacon,  310  (F.  N.  B.  104),  the  ground  of  the  audita  querela  was 
that  the  statute  was  fraudulently  obtained,  i.  e.  forged. 

1  G.  Bacon,  311.  Judgment  against  principal;  upon  audita  querela, 
he  was  delivered  from  execution.  It  seems  this  judgment  in  audita 
querela,  this  deliverance,  shall  operate  a  discharge  of  the  bail ;  because,  as 
the  judgment  against  the  bail  depends  on  that  against  the  principal,  when 
the  latter  is  removed  out  of  the  way,  it  destroys  the  former,  i.  e  against 
the  bail. 

2  Ves.  .Jr.  135.  Semhle,  where  judgment  obtained  against  conscience 
by  concealment,  relief  by  bill  in  equity. 


upon  any  question  of  fact  bearing  on  the  validity  of  the  judgment.  The 
supersedeas  was  ordered,  as  a  matter  of  course,  upon  the  filing  of  the  peti- 
tion for  review. 

The  doctrine  of  Williams  v.  Roberts,  1850,  8  Hare,  315,  if  correct,  does 
not  go  to  the  length  of  denying  that  the  adjudication  upon  the  audita 
querela  was  conclusive  in  subsequent  proceedings  at  law,  however  it  might 
be  in  equity. 


SEPTEMBER   TERM,  1805.  123 

Twombly  v.  Baker. 

in  consideration  of  the  premises,  the  executor  became  liable, 
and,  being  so  liable,  promised  to  pay  this  legacy,  &c. 

Plea  :  the  general  issue. 

By  consent,  a  verdict  was  found  at  last  Term  for  the  plain- 
tiff, subject  to  the  opinion  of  the  Court  on  two  questions : 
1.  Whether  this  action  lies  ;  2.  Wiiether  the  plaintiff's  testa- 
tor, Thomas,  had  a  vested  right  to  this  legacy  by  the  will,  he 
having  died  within  three  years  from  the  decease  of  Otis 
Baker,  the  defendant's  testator. 

[  Oliver  Crosby,  for  plaintiff. 
Jonathan  Steele,  for  defendant.] 

The  opinion  of  the  Court  was  now  delivered  by  Smith,  C.  J. 

As  to  the  first  point. 

The  executor  has  a  right  to  retain  articles  specifically  de- 
vised or  bequeathed,  and  much  more  to  refuse  payment  of 
pecuniary  legacies,  till  the  sufficiency  of  the  estate  is  ascci- 
tained.  If,  in  this  case,  the  debts  and  charges  had  not  been 
liquidated  and  ascertained,  this  action  could  not  be  maintained. 
But  if  we  take  it  for  granted  that  this  has  been  done,  then  it 
is  clear  an  action  at  law  to  recover  this  pecuniary  legacy  lies 
here,  though  it  does  not  in  England.  Our  probate  courts 
cannot  enforce  the  payment  of  a  legacy;  but  the  legatees, 
who  have  an  interest  in  the  estate  after  the  debts  and  charges 
paid,  can  compel  the  executor  to  settle  his  account  in  the 
probate  courts,  in  which  he  will  be  charged  with  all  the  estate 
which  has  come  to  his  hands,  and  credited  with  the  charges  of 
administration,  and  debts  paid,  (a)  As  the  executor  in  this 
case  has  not  objected  to  the  sufficiency  of  the  estate,  we  will 
take  it  for  granted  tiuit  all  this  has  been  done.  (/>) 

(a)  And  from  this  account  it  will  appear  v.hether  the  estate  is  sufficient 
to  pay  the  legacies.  No  action  can  be  maintained  to  recover  a  legacy  till 
the  executor  has  settled  such  an  account,  except  he  makes  himself  liable 
by  an  express  undertaking,  which  is  not  pretended  in  this  case. 

(6)   See  1  Manuscript  on  Descent,  &c.,  632-631,  673. 

2  Salk.  415.  In  England,  ejectment  lies  for  a  chattel  real  bequeathed 
after  assent  of  executor.     3  East,  120. 

In  this  case  no  assent  is  stated.  The  ground  of  this  action  is  the 
implied  promise  arising  from  the  sufficiency  of  estate  ascertained  in  due 
course  of  law. 


124  STRAFFORD. 


Twombly  v.  Baker. 


On  the  second  point  there  is  as  little  room  to  doubt.  This 
is  a  vested  legacy.  A  legacy  may  be  vested  before  it  is  pay- 
able ;  it  is  then  dehitum  in  presently  solvendum  in  futuro ;  3 
Woodes.  512  ;  1  Manuscript  on  Descent,  &c.,  269,  271,  &c.  The 
words  of  this  will  are,  "  I  give  my  son,  Thomas  Baker,  $333.34, 
to  be  paid  him  in  three  years  after  my  decease."  Here  the  time 
is  not  annexed  to  the  substance  of  the  gift  as  a  condition  pre- 
cedent, as  it  would  iiave  been  if  the  words  had  been,  ''  I  give 
my  son,  Thomas  Baker,  $333.34  if  he  live  three  years  from 
and  after  my  decease,"  or  "  if  he  arrive  at  the  age  of  twenty- 
one,"  or  "  if  he  marry,"  or  "  when  he  marries,"  &c.  It  does 
not  appear  to  have  been  the  intention  of  the  testator,  Otis 
Baker,  that  Thomas  should  only  have  the  legacy  in  the  event 
of  his  living  three  years  after  Otis  Baker's  death.  He  pro- 
vides a  fund  out  of  which  the  legacy  shall  be  paid,  and  devises 
the  residue  of  that  fund.  The  Courts  formerly,  as  it  respects 
this  question,  adopted  overstrained  and  nice  distinctions.  But 
this  is  a  clear  case  by  the  English  rules  of  construction.  Our 
law  is  still  more  favorable  to  the  devisee,  and  against  lapsed 
legacies.  It  provides  that  in  case  of  devisee  dying  before 
testator,  his  lineal  descendants  shall  take.  It  would  be  absurd 
to  say  that,  dying  after,  the  legacy  should  lapse. ^ 

Judgment  for  plaintiff ;  $340  damages,  being  the  damages 
assessed  by  the  jury. 

[Extract  from  the  Opinion  of  Smith,  C.  J.,  in  Patterson  v.  Carnes, 
Rockingham,  Fkbkuaky  Term,  1809;  an  Action  of  Debt  to 
RECOVER  A  Legacy  of  a  Devisee  of  Real  Estate  on  which 
THE  Legacy  was  charged.] 

Debt  lies  for  this  legacy,  not  against  the  executor  of  M.  L., 
but  against  the  devisee  of  the  land  charged  with  the  pay- 
ment. 

The  Province  Law,  13  Anne,  ed.  1771,  46,  (a)  gives  an 

(a)  This  statute  enacts,  "  That  where  any  certain  legacy  is  or  shall  be 
bequeathed  or  given  by  any  person,  in  his  or  her  last  will  and  testament; 


1  Upon  the  second  point  in  this  case,  the  decision  is  sustained  by  Broton 
V.  Brown,' IS62,  44  N.  IL  281;  and  Felton  v.  Sawyer,  18G0,  41  N.  H.  202. 


SEPTEMBER   TERM,   1805.  125 

Twombly  v.  Baker. 

action  for  a  certain  legacy,  or  one  made  certain  by  the  execu- 
tor's account.  The  law  must  have  been  so  in  this  State 
before  that  act  was  passed,  and  continued  to  be  so  after  it  was 
repealed. 

It  is  said  by  Holt,  C.  J.,  in  Uwer  v.  Jones,  2  Ld.  Raym.  937, 
that  a  devisee  may  maintain  an  action  at  common  law,  against 
the  terre-tenant,  for  a  legacy  devised  out  of  land  :  where  a  stat- 
ute gives  a  man  a  right,  he  shall  have  an  action  to  recover  it. 
6  Mod.  26  ;  2  Salk.  415  ;  Cowp.  291.  This  is  clearly  so  in  this 
State.  It  seems  improper,  in  this  case,  to  talk  about  defend- 
ant's assent.  It  is  an  executor  that  assents.  Defendant  is 
sued,  not  as  executor,  but  as  devisee.  This  devisee  doubtless 
might  have  declined  the  devise  on  the  terms  offered.  Here 
he  has  not  declined,  but  accepted.  I  lay  out  of  the  case  the 
evidence  of  Moore  and  Clark  as  unnecessary.  The  act  of 
entry  and  occupation  is  sufficient  evidence  of  assent  or  accept- 
ance to  charge  defendant.     4  G.  Bacon,  444. 

It  has  been  said  that  an  action  cannot  be  maintained  for  a 
legacy  till  it  appears  that  the  debts  and  prior  legacies  are  paid, 
or  at  least  that  there  is  estate  enough  to  pay  all  debts,  charges, 
prior  legacies,  and  the  present  one.  If  this  action  were 
against  the  defendant  as  executor,  it  would  be  true  that,  if 
express  assent  to  the  legacy  be  not  proved,  but  the  plaintiff 
relies  on  an  implied  promise,  before  defendant  executor  can  be 
charged,  it  must  appear  that  there  is  estate  enough  to  satisfy 
all  prior  claims,  or,  which  is  the  same  thing,  that  there  is 
estate  to  satisfy  the  legacy  demanded.  Till  this  is  made  to 
appear,  no  j)romise  is  implied  by  law  to  pay,  and  the  legacy  is 
not  a  debt  due  from  executor.  And  this  can  only  be  shown 
by  express  assent  or  promise  to  pay  the  legacy  in  question,  or 
proceedings  in  the  Probate  Court,  whereby  the  facts  just 
stated  are  made  manifestly  to  appear.  This  is  the  best  evi- 
dence, and  I  think  the  only  admissible  evidence,  of  the  fact. 
But,  in  the  present  case,  Carnes  did  not  enter  upon  this  estate 

as  also  where  any  residuary  or  uncertain  legacy  is,  or  shall  by  the  accompt 
of  any  executor  be,  reduced  to  a  certainty ;  every  such  legacy  or  legacies, 
as  aforesaid,  may  be  sued  for,  and  recovered  at  the  commou  law,  any 
law,  usage,  or  custom  to  the  contrary  notwithstanding." 


126  STRAFFORD. 


Twombly  v.  Baker. 


as  executor,  but  as  devisee.     His  entry  is  an  acceptance  of 
the  devise  with  the  charges  upon  it,  and  binds  him.^ 

[Extract  from  Manuscript  Treatise  on  Probate  Law.] 

It  is  said  that  the  legatee  can,  in  the  spiritual  court,  under 
certain  circumstances,  compel  the  executor  to  assent.  This  is 
inaccurate.  The  assent  is  a  voluntary  act  of  the  executor. 
But  the  legatee  can  compel  the  executor  to  account  in  the 
spiritual  court,  whereby  it  will  appear  whether  it  is  necessary 
for  him  to  retain  the  chattel  bequeathed,  or  not.  When  it 
appears  that  no  such  necessity  exists,  this  is  equivalent  to 
assent ;  because  the  legatee  may  thereupon  sue  for  it.  4  G. 
Bacon,  444,  n.  ;  Com.  Dig,  Ch.  3  g.  4  ;  Adm.  c.  3, 

The  same  thing  may  be  done  here  in  the  Probate  Court,  as 
far  as  respects  accounting. 

Perhaps  it  would  be  more  correct  to  say  that  the  executor 
has  a  right  to  retain  chattels  specifically  bequeathed  till  he 
voluntarily  consents  to  part  with  them,  or  till  such  proceed- 
ings are  had  in  the  Probate  Court  as  clearly  demonstrate 
that  he  has  no  right  to  detain  them  from  the  legatees,  (a) 

This  cannot  be  done  in  many  cases  till  the  expiration  of 
three  years,  the  time  limited  for  bringing  in  claims  against  the 
estate  ;  or  until  the  claims  are  liquidated  by  proceedings  in  the 
insolvent  course  of  administration.  3  Woodes.  143,  144,  507  ; 
4  Burn,  332 ;  Com.  Dig.  Ch.  3  g.  3. 

It  is  very  clear  that  no  suit  for  a  legac}'  can  be  maintained 
till  the  expiration  of  one  year  from  the  time  of  proving  the 
will  or  taking  out  letters  of  administration.  It  must,  I  think, 
be  equally  clear  that  it  cannot  be  maintained  in  a  court  of  law 
till  the  settlement  of  the  administration  account.  (6)     A  jury 

(a)  And  these  proceedings  prove  an  implied  assent. 
(6)  Or  perhaps  till  executor  has  refused  on  citation  to  settle  account, 
in  which  case  assets  shall  be  deemed  sufficient.* 

1  As  to  proceedings  to  recover  legacies  charged  upon  land,  see  Piper 
V.  Piper,  18-22,  2  N.  H.  439;  Pickering  v.  Pickering,  1833,  6  N.  H.  120; 
Veazey  v.  Whilehouse,  1839,  10  N.  H.  409;  Pickering  v.  Pickering,  1844, 
15  N.  H.  281;  Smith  v.  Jewett,  1860,  40  N.  H.  530;  Wiggin  v.  Wiggin, 
1862,  43  N.  H.  561. 

*  See  Gookin  v  Hoit,  1826,  3  N.  H.  392. 


OCTOBER   TERM,   1805.  127 


Chapman  i;.  Bellows. 


are  wholly  incompetent  to  try  the  amount  of  debts  due, 
charges  of  administration,  and  the  amount  of  estate  for  which 
the  executor  is  accountable.^ 


CHESHIRE,   OCTOBER  TERM,   1805. 


Chapman  and  Hartwell  v.  Thomas  Bellows. 

A  slieriff  attaching  goods  at  the  suit  of  A.,  B.,  and  C,  in  the  order  liere  stated,  is 
bound  to  keep  them  safely,  so  that  the  last  may  have  the  benefit  of  the  goods 
to  satisfy  his  demand  ;  the  first  and  second  suits  not  having  been  prosecuted. 
Neither  the  sheriff,  nor  the  debtor,  nor  the  creditor  can  appropriate  them  to  the 
satisfaction  of  a  former  attachment,  so  as  to  avail  against  a  latter,  except  on 
execution. 

This  was  an  action  of  the  case  [against  the  sheriff  of 
Cheshire  County],  for  the  default  of  Isaac  Temple,  one  of 
defendant's  deputies,  in  not  safely  keeping  goods  of  W.  Mills, 
attached  on  mesne  process,  so  as  to  be  enabled  to  levy  plain- 
tiff's execution,  which  issued  in  the  same  suit.  The  first  count 
stated,  that  the  defendant's  deputy  did  not  retain  tiie  goods 

1  In  the  following  cases  in  this  State,  where  suits  at  law  or  bills  in 
equity  have  been  maintained  by  legatees  against  executors,  the  question 
■whether  the  sufficiency  of  the  assets,  if  disputed,  can  be  proved  in  any 
other  manner  than  by  the  proceedings  in  the  Probate  Court,  was  not 
directly  decided.  In  Hill  v.  Rochingha?n  Bank,  1863,  44  N.  II.  5(57,  the 
allegations  of  the  bill,  that  the  estate  had  been  duly  settled,  &c.,  were 
admitted  by  the  demurrer.  In  Congregational  Society  v.  Hatch,  1869, 
48  N.  H.  393,  the  sufficiency  of  the  assets  was  impliedly  admitted  by  the 
pleadings.  In  Brawny.  Brown,  186-2,44  N.  H.  'J81,  the  defendant  had 
given  bond  to  pay  debts  and  legacies.  In  Felton  v.  Sawyer,  1860,  41  N.  II. 
202,  the  executor  had  settled  his  account  in  the  Probate  Court,  and  had 
made  partial  payments  to  the  beneficiary.  In  Payne  v.  Smith,  1841, 
12  N.  H.  34,  there  was  no  objection  on  the  ground  of  want  of  a.sseta,  and 
there  was  evidence  on  which  the  jury  might  have  found  an  admission  of 
assets  on  the  part  of  the  executor. 

In  some  States,  the  remedy  at  law,  against  an  executor,  for  a  legacy,  is  a 
subject  of  statute  regulation. 


128  CHESHIRE. 


Chapman  v.  Bellows. 


till  thirty  days  after  judgment,  but,  before  that  time,  released 
and  discharged  them  from  the  attachment.  The  second  count 
was  for  neglect  to  execute  and  return  the  execution. 

Plea  :  the  general  issue,  with  liberty  to  give  special  matter  in 
evidence. 

The  principal  question  on  the  trial  was  as  to  the  liability  of 
the  sheriff  for  goods  attached  at  the  suit  of  a  third  creditor, 
the  two  former  not  having  entered  their  actions.  The  goods 
attached  were  not  of  sufficient  value  to  satisfy  the  prior  attach- 
ments. These  suits  had  been  settled  between  the  creditors 
and  the  debtor,  and  these  goods  appropriated  to  that  use. 

The  Court  intimated  an  opinion  that  the  sheriff  was  an- 
swerable to  the  third  attaching  creditor  for  the  whole  amount 
of  goods  attached  at  his  suit ;  that  neither  the  debtor  nor  the 
sheriff  could  appropriate  the  goods  to  satisfy  the  prior  attach- 
ments, so  as  to  affect  the  right  of  the  third  attaching  creditor ; 
that,  when  the  former  attachments  were  lost,  the  latter  re- 
mained good.^ 

1  This  opinion  is  directly  sustained  by  Brandon  Iron  Co.  v.  Gleason, 
1852,  24  Vt.  228.  The  same  principle  was  applied  to  a  different  state  of 
facts  in  Cole  v.  Wooster,  1817,  2  Conn.  20:3;  and  in  Wilder  v.  IVeather- 
head,  1860,  32  Vt.  765,  was  applied  to  foreign  attachments.  See  also 
Williams,  C.  J.,  in  Union  Man.  Co.  v.  Pitkin,  1811,  14  Conn.  174,  182; 
Van  Winkle  v.  Udall,  1841,  1  Hill,  559;  Murray  v.  Eldridge,  1830,  2  Vt. 
388;  71/or.s-e  v.  Knowllon,  1862,  5  Allen,  41;  Wilcox,  J.,  in  Goddard  v. 
Perkins,  1838,  9  N.  H.  488,  489.  Richari>80N,  C.  J.,  in  Dodye  v.  Gris- 
wold,  1837,  8  N.  H.  425,  427,  428.  Nor  is  this  principle  impugned  by  the 
later  New  Hampshire  cases,  relative  to  the  nature  of  the  interest  acquired 
by  an  attachment;  viz..  Stone  v.  Anderson,  1853,  26  N.  H.  506;  Kitlredge 
V.  Warren,  1844,  14  N.  H.  509,  525-527;  Kiltredye  v.  Emerson,  1844, 
15  N.  H.  227;  Moulton  v.  Stowell,  1844,  16  N.  H.  221;  Jackson  v.  Smith, 
1872,  52  N.  H.  9,  13. 

But  if  the  first  attaching  creditor  prosecutes  his  action  to  judgment,  and 
takes  out  execution,  the  sheriff  may  not  always  be  held  liable  to  the  last 
attaching  creditor,  on  account  of  an  irregular  sale  of  the  attached  goods 
(not  authorized  by  statute)  during  the  pendency  of  the  actions,  if  it  was 
made  under  an  agreement  between  the  first  attaching  creditor  and  the 
debtor,  that  th6  proceeds  should  be  held  and  applied  in  satisfaction  of  the 
judgments  which  might  be  recovered,  and  the  amount  so  realized  was  not 
more  than  sufficient  to  satisfy  the  execution  of  the  first  creditor,  and  was 
thus  appropriated.  Jn  Munger  v.  Fletcher,  1830,  2  Vt.  524,  there  were 
six  attachments  in  succession.     The  first  five  attaching  creditors,  with  the 


OCTOBER  TERM,  1805.  129 

Chapman  v.  Bellows. 

The  cause  was,  by  consent,  submitted  to  arbitration,  the 
deputy  sheriff  alleging  that  he  released  the  goods  pursuant  to 
orders  received  from  tlie  plaintiffs. 

The  arbitrators  awarded  for  defendant,  and  judgment  was 
rendered  accordingly. 

debtor's  assent,  agreed  to  a  sale  before  judgment;  the  proceeds  to  be  ap- 
plied to  the  satisfaction  of  all  the  claims  in  the  order  of  attachment,  so  far 
as  said  proceeds  would  reach.  After  the  sale,  judgments  were  recovered 
by  all  the  creditors,  executions  seasonably  issued,  and  the  proceeds  of  the 
sale  were  applied  pro  lanto  on  the  execution  of  Breck,  the  first  attaching 
creditor,  which  they  proved  insufficient  to  satisfy.  Held,  that  the  officer 
was  not  liable  to  the  last  attaching  creditor  for  neglect  to  keep  the  attached 
property.  Hutchinson,  J.,  p.  529:  "  Had  the  avails  been  applied  in  pay- 
ment of  Breck's  debt,  without  its  being  perfected  by  a  judgment,  this 
would  have  been  substituting  an  agreement  for  the  attachment,  and  would 
have  destroyed  the  lien.  The  debt  of  Breck,  and  its  amount,  have  been 
established  just  as  they  would  have  been  if  no  agreement  had  been  made, 
and  the  lien  kept  good  by  his  execution,  and  delivery  of  the  same  to  the 
officer.  .  .  .  These  creditors  kept  their  lien  good  upon  the  property." 
See  also  the  explanation  of  Hunger  v.  Fletcher  given  by  Isham,  J.,  in 
Brandon  Iron  Co.  v.  Gleason,  1852,  24  Vt.  228,  236.  Compare  Collins  v. 
Brigham,  1840,  11  N.  H.  420,  422,  423;  and  see  Barker  v.  Barker,  18ti7,  47 
N.  H.  341,  and  Grant  v.  Lathrop,  1851,  23  N.  H.  67. 

Upon  a  state  of  facts  very  similar  to  Hunger  v.  Fletcher,  it  was  held  in 
Rich  V.  Bell,  1820,  16  Mass.  294,  that  the  last  attaching  creditor  might 
maintain  an  action  against  the  sheriff,  but  could  recover  only  nominal 
damages.  That  part  of  the  decision  relating  to  the  damages  is  questioned 
in  Mr.  Rand's  editorial  note,  16  Mass.  299,  n.  7.  In  Fairjield  v.  Baldwin, 
1832,  12  Pick.  388,  398,  Putnam,  J.,  said,  of  Rich  v.  Bell,  "  In  that  case 
the  first  attaching  creditor  pi-eserved  his  lien.  ..." 

In  Jordan  v.  Gallup,  1844,  16  Conn.  536,  an  irregular  disposition  of  the 
attached  property  by  the  officer  (whereby,  as  explained  in  16  Conn.  574, 
it  was  exonerated  from  the  lien  of  the  attachments)  was  not  consented  to 
by  any  of  the  attaching  creditors;  the  actions  were  all  prosecuted  to  judg- 
ment; and  the  avails  of  the  property,  as  far  as  received,  were  applied  on 
the  executions  of  the  first  attaching  creditors.  Held,  that  the  last  attach- 
ing creditor  might  maintain  an  action  against  the  officer,  but  could  recover 
only  nominal  damages.  Stokrs,  J.,  p.  518,  "  As  the  value  of  the  property 
attached  in  this  case  was  less  than  the  amount  for  which  it  was  holden  on 
the  writs  which  were  served  on  it  prior  to  the  plaintiffs',  it  is  obvious 
that  the  plaintiffs  would  have  received  no  benefit  from  the  attachment  of 
the  property,  if  it  had  been  retained  by  the  officer  in  his  possession,  and 
proceeded  with  strictly,  according  to  law.  They  have  therefore  sustained 
no  actual  damage,  by  the  negligence  of  which  they  complain." 

9 


130  ROCKINGHAM. 


Phillips  V.  Leavitt. 


ROCKINGHAM,   FEBRUARY  TERM,   1806. 


John  Phillips,  Administrator  of  Samuel  Phillips,  v. 
Benjamin  Leavitt,  Executor  of  Benjamin  Leavitt. 

Neglect  to  exhibit  a  demand  to  an  executor  within  three  years  from  probate  is  a 
bar,  though  the  creditor,  who  lived  in  Massachusetts,  died  during  tiie  three 
years,  and  his  administrator  exhibited  the  demand  within  three  years  from  the 
grant  of  administration. 

This  was  an  action  of  assumpsit,  founded  on  a  promissory 
note.     Writ  dated  May  26,  1804 ;  service,  July  25,  1804. 

Plea  in  bar.  April  20,  1801,  will  of  Benjamin  Leavitt 
proved;  Benjamin,  executor,  accepted  and  qualified.  Samuel 
Phillips,  then  in  full  life,  and  inhabitant  of  Andover,  Mass. 
Administrator  of  the  same  place.  Neither  Samuel  nor  John 
Phillips,  within  three  years  from  the  probate,  did  exhibit  the 
said  demand  to  the  defendant,  the  executor  of  Benjamin 
Leavitt,  deceased  (the  promisor). 

Replication  admits  all  the  facts  stated  in  the  plea,  but 
avoids,  by  showing  that  Samuel  Phillips,  plaintiff's  intestate, 
died,  Feb.  10, 1802  ;  John  appointed,  May  10,  in  the  same  year, 
administrator ;  demand  exhibited  within  three  years  from  ad- 
ministration granted  to  plaintiff. 

Demurrer,  and  joinder. 

The  opinion  of  the  Court  was  now  delivered  by  Smith,  C.  J. 

After  stating  the  pleadings,  he  said  :  The  matter  pleaded  in 
bar  is,  that  the  creditor  has  neglected  to  exhibit  this  demand 
against  the  estate  of  Benjamin  Leavitt,  deceased,  to  the  ex- 
ecutor, within  three  years  next  after  proving  the  will ;  the 
consequence  of  which,  by  the  statute,  is,  that  the  debt  is 
extinguished,  and  the  creditor  totally  barred  from  recovering 
the  same.      N.  H.  Laws,  ed.  1805,  175.     The   necessity  for 


FEBRUARY   TERM,  1806.  131 

Phillips  V.  Leavitt. 

exhibiting  is  attempted  to  be  avoided  by  showing  that  the 
creditor  died  within  the  time  limited.  Now  the  statute  con- 
tains no  saving  on  this  account.  It  only  allows  to  persons  in 
captivity  one  year  after  the  impediment  is  removed.  It  is  not 
necessary  to  say  whether  the  statute  is  wise  or  unwise ;  wliether 
good  or  bad.  It  would  be  too  much  in  the  Court  to  allow  a 
saving  where  the  statute  has  allowed  none.  There  ceitainl}' 
are  many  good  reasons  why  demands  against  the  estates  of 
deceased  persons  should,  in  a  short  peiiod  of  time,  be  exhibited 
to  the  executor.  I  am  not  prepared  to  say  that  three  years  is 
too  long.  When  the  insolvent  course  of  administration  is  pur- 
sued, demands  may  be  barred  in  six  months,  and  must  be  so  in 
eighteen  months  from  the  issuing  of  the  commission,  which 
will  generally  be  within  three  years  from  administration 
granted. 

Cari/  and  wife  v.  Stephenson,  2  Salk.  421,  has  been  cited  and 
relied  on  by  the  plaintiff's  counsel.  The  case  was:  A.  re- 
ceived money  belonging  to  the  estate  of  an  intestate,  after  his 
death.  The  administrator  afterwards  appointed  sued  him 
for  it  within  six  years  from  administration  granted,  but  beyond 
six  years  from  the  time  when  the  money  was  received.  The 
Statute  of  Limitations  was  pleaded  ;  that  is,  that  the  defendant 
did  not  promise  within  six  years  ;  the  cause  of  action  did  not 
accrue'  within  six  years.  It  was  adjudged  no  bar.  The  cause 
of  action  first  accrued  on  administration  granted.  How  could 
defendant  be  said  to  have  promised  an  administrator  till  one 
was  appointed  ?  There  was  no  cause  of  action  in  the  intestate  ; 
there  could  have  been  no  promise  to  him.  This  case  is  more 
correctly  stated  in  a  note  in  4  G.  Bacon,  479.  It  is  there  said 
that  the  statute  begins  to  operate  onl}'  from  the  time  a  right  to 
demand  the  thing  in  question  vests  in  some  one.  Had  the 
money  been  leceived  in  the  lifetime  of  the  person  who  died 
intestate,  tiiat  person  would  have  had  a  right  of  action  against 
A.  vested  in  him,  and  from  that  period  the  time  of  limitation 
would  have  commenced,  and  the  statute  would  have  been  a 
bar;  for,  when  once  the  time  of  limitation  has  begun  to  run,  it 
suffers  no  interruption  from  the  death  of  the  claiuuint ;  nor 
does  it  revive  in  favor  of  any  person  upon  whom  the  right  of 


132  ROCKINGHAM. 


Phillips  V.  Leavitt. 


claim  may  devolve.  1  Strange,  556  ;  1  Wilson,  134.  If  Samuel 
Phillips  had  been  dead  when  the  will  was  proved,  and  no 
representative  appointed,  there  would  be  a  resemblance  in  the 
cases ;  but,  as  this  case  is,  the  case  cited  is  an  authority  for 
the  defendant.  But  the  general  limitation  law  and  the  one 
now  under  consideration  are  ver}'  different,  and  the  same  rules 
of  construction  do  not  apply  to  both. 

There  is  provision  in  England,  by  construction  of  the  general 
law  of  limitation,  that,  in  case  the  statute  begins  to  run,  and 
the  creditor  die,  in  some  cases  his  representative  may  sue  after 
the  period  has  elapsed ;  but  he  must  do  it  soon,  as  early  as  he 
can.    4  G.  Bacon,  483  ;  Com.  Dig.  Temps  (g.  17). 

Our  statute  has  made  this  matter  certain.  The  represent- 
ative shall  have  two  years  from  the  time  of  his  becoming  such, 
to  prosecute,  when  the  deceased  had  cause  of  action  at  his 
death.  N.  H.  Laws,  ed.  1805,  139.  But  this  doctrine  of  the 
English  courts  and  of  our  statute  will  apply  onl}'  to  the  gen- 
eral limitation  law,  and  not  to  demands  against  the  estates  of 
deceased  persons ;  i.  e.,  to  the  commencement  of  actions,  not  to 
the  exhibiting  of  claims.^  And  even  if  it  did  apply,  it  would 
not  support  this  replication,  which  claims  the  right  of  exhibit- 
ing within  three  3^ears,  instead  of  two.  There  is  no  room  for 
construction  in  this  case ;  there  is  no  saving  in  the  statute,  ex- 
cept for  persons  in  captivity.  Creditors  abroad  will  generally 
have  agents  here.  Persons  deceased  will  generally  have  repre- 
sentatives.    Insane  persons  will  have  guardians. 

Judgment  for  the  defendant. 

1  In  Brewster  v.  Brewsler,  1872,  52  N.  H.  52,  it  was  held,  that  the  above- 
cited  statute  modifies  the  statute  which  limits  actions  against  administra- 
tors to  three  years. 


MAY   TERM,  1806.  133 


Jones  V.  Ames. 


GRAFTON,    MAY   TERM,    1806. 


Timothy  Jones  v.  Solomon  Ames. 

After  a  writ  lias  been  filled  out,  and  delivered  to  an  officer  for  service,  a  tender  of 
the  debt  without  costs  is  pood,  unless'the  creditor,  at  the  time  of  tender,  notifies 
the  debtor  that  a  writ  has  issued. 

This  was  an  action  of  assumpsit.  There  were  several 
counts  in  the  declaration  (for  several  causes  of  action),  on 
all  of  which  issues  were  joined  to  the  country,  and  found  for 
the  defendant  at  this  Term,  except  the  third,  which  was  on 
a  note  of  hand  for  $2.38,  payable  on  demand,  with  interest, 
date,  Sept.  14,  1801 ;  to  which  there  was  a  plea  of  tender, 
Feb.  12,  1803,  at  Orford,  of  112.60.  To  this  there  was  rep- 
lication, stating  that,  on  Feb.  8,  1803,  before  the  tender, 
the  phiintiff  had  sued  out  a  writ  on  the  note  declared  on,  and 
had  delivered  the  same  to  Stephen  Lumbard,  a  deputy  sheriff, 
for  service  ;  whereby  defendant  became  liable,  by  law,  to  pay 
plaintiff  $1.34,  the  cost  accrued,  in  addition  to  the  said  sum 
of  $2.60. 

To  this  there  was  a  demurrer  and  joinder. 

Per  Curiam.  There  must  be  judgment  for  defendant ;  it 
not  being  alleged  that  plaintiff,  at  the  time  of  the  tender  of  the 
debt,  gave  notice  that  a  writ  had  issued.  The  replication  does 
not  allege  that  any  notice  was  given.  Defendant  was  not  bound 
to  pay  unless  notified.  We  cannot  presume  notice  in  this 
case,  (a)  Judgment  for  defendant} 

(a)  Qucere.  Was  not  defendant,  when  he  tendered  for  the  debt,  bound 
to  inquire  whether  any  writ  had  issued.  See  Rep.  Hillsborough,  April 
Term,  1807. 

8  T.  R.  629..    It  seems  expenses  incurred  in  retaining  an  attorney  to 

1  In  support  of  this  decision,  see  the  views  expressed  in  Haskell  v. 
Brewer,  1834,  2  Fairf.  (Me.)  258,  262,  and  in  Hull  v.  Peters,  1849,  7  Barb. 


134  GRAFTON. 


Jones  i;.  Ames. 


commence  an  action,  &c.,  need  not  be  paid,  to  make  a  tender  good ;  but  it 
is  coiictivcd  the  writ  must  be  paid  for,  if  defendant  has  notice;  and  that 
he  must  have  notice  if  no  service  made. 


(N.  Y.)  331.    See,  however,  Butlkr,  C.  J.,  in  Studwellv.  Cooke,  1871,  38 
Conn.  519,  552. 

In  some  jurisdictions,  the  defendant  need  not  have  relied  on  his  want  of 
notice  of  the  commencement  of  the  action,  but  might  have  taken  the 
broader  ground,  that  the  action  had  not  been  commenced  at  the  time  of 
tender.  AMurn  v.  Poulter,  1869,  35  Conn.  553;  Studwell  v.  Cooke,  1871, 
38  Conn.  549;  Randall  v.  Bacon,  1876.  49  Vt.  20;  Knight  v.  Beach,  1869, 
7  Abb.  N.  Y.  Pr.  n.  8.  241.  But  the  defendant  was  precluded  on  this 
point  by  the  then  recent  decision  in  Brown  v.  Sheaf e,  Rockingham,  Sep- 
tember Term,  1803.  In  that  case,  a  tender  was  made  after  the  writ  had 
been  filled  out  and  delivered  to  an  officer  for  service,  but  before  service. 
Held,  that  the  action  was  commenced  before  the  tender.  Compare  Evier- 
son  V.  While,  1858,  10  Gray,  351.  It  has  since  been  held  in  this  State  that 
an  action  is  to  be  regarded  as  commenced,  so  as  to  stop  the  running  of  the 
Statute  of  Limitations,  when  the  writ  is  filled  up  with  the  declaration,  in 
order  to  have  it  served  on  the  opposite  party.  Society  for  Propagating  the 
Gospel  V.  Whitcomh,  1820,  2  N.  H.  227;  Howard  v.  Hunt,  1845,  17  N.  H. 
449;  Bkli.ows,  J.,  in  Mason  v.  Cheney,  1866,  47  N.  II.  24;  Brewster  v. 
Brewster,  1872,  52  N.  II.  52,  60.  And  an  action  has  been  held  to  be  com- 
menced, so  as  to  exclude  the  set-off  of  a  subsequently  acquired  claim, 
when  the  writ  was  made  out  and  placed  in  the  hands  of  an  officer  for  ser- 
vice. Hardy  v.  Corli^,  1850,  21  N.  H.  356.  Perley,  J.,  said,  p.  3-57,  "  It 
has  been  well  and  long  understood  in  our  practice  that,  as  a  general  rule, 
an  action  is  commenced  when  the  writ  is  filled  up  with  the  declaration,  as 
the  statute  provides,  in  order  to  have  it  served  on  the  opposite  party. 
Tliis  rule  is  established  on  the  authority  of  several  reported  cases ;  and, 
so  far  as  we  are  aware,  no  decision  has  been  made  in  this  State,  applying  a 
different  rule  to  any  case  for  any  purpose." 


NOVEMBER   TERM,   1806.  135 


State  V.  Keyes. 


HILLSBOROUGH,    NOVEMBER   TERM,    180G. 


State  v.  John  Keyes. 

The  omission  of  the  words  "  this  is  a  true  bill,"  before  the  signature  of  the  fore- 
man of  the  grand  jury  to  an  indictment,  held  immaterial  after  verdict. 

Indictment  for  assault  and  battery  on  Samuel  Hall. 

Defendant  was  convicted.  His  counsel,  Mr.  Bell,  moved,  in 
arrest  of  judgment,  that  there  was  no  evidence  that  the  indict- 
ment was  found  by  the  grand  jury.  The  bill  was  signed  by 
the  solicitor,  B.  Everett,  and  by  the  foreman  of  the  grand  jury. 
But  the  words,  "  this  is  a  true  bill,"  were  omitted. 

The  counsel  [for  defendaiif]  contended  that  this  omission 
was  fatal,  that  the  signature  of  the  foreman,  with  the  addition 
of  "  foreman,"  was  not  sufficient.  The  intention  of  the  jury 
may  have  been  to  find  it  not  a  true  bill,  in  which  case  it 
would  have  the  signature  as  it  now  has.  This  bill  in  its  pres- 
ent shape  shows  that  the  grand  jury  have  acted  upon  it,  but  it 
does  not  appear  what  they  have  done. 

The  solicitor  contended  that,  according  to  the  usage  in  this 
State,  it  was  evident  that  the  grand  jury  had  found  this  a 
true  bill;  because  the  jury  never  indorse  ^'■ignoramus'''  or 
'•'  this  is  not  a  true  bill,"  as  they  sometimes  do  in  England. 
This  difference  in  the  usage  removes  all  pretence  of  uncer- 
tainty. All  bills  signed  by  the  foreman  are  found  true  bills. 
But,  if  this  were  not  so,  it  is  too  late  to  take  the  exception 
after  plea  pleaded.  By  pleading  to  this  indictment,  defendant 
admits  it  is  duly  found. 

Per  Curiam.  Motion  denied} 

1  S.  P.  State  V.  Freeman,  1843,  13  N.  H.  488;  s.  c.  2  Lead.  Crim.  Cas. 
2d  ed.  250;  Commonwealth  v.  Smyth,  1853,  11  Cush.  473. 
Contra,  Webster's  Case,  1828,  5  Greenl.  432. 
Nomaque  v.  People,  1825,  Breese,  109,  is  sometimes  cited  as  similar  to 


136  HILLSBOROUGH. 


Couch  V.  Davis. 


Nath.  H.  Couch  v.  Oliver  Davis. 

Report  of  referees  recommitted.  One  referee  (by  desire  of  the  party  against  wliom 
the  report  was,  and  at  whose  request  it  had  been,  recommitted)  refused  to  liear 
the  parties  again.  The  other  two  referees  reported  the  same  as  before,  and 
additional  costs. 

First  report  accepted,  and  costs  of  recommitment  taxed. 

At  the  lust  Term  there  was  a  report  of  referees  [in  favor  of 
the  phiiiitiff].  This  report  was  recommitted  [at  the  request 
of  the  defen(hint].  On  the  recommitment,  one  of  the  referees 
refused  to  hear  tiie  parties  again.  The  other  two  notified  the 
parties.  Defendant  did  not  attend.  Those  two  reported, 
at  this  Term,  a  confirmation  of  former  report  and  additional 
costs. 

Judgment  was  rendered  at  this  Term  on  the  first  report, 
and  costs  of  last  hearing  were  taxed.  It  is  understood  by 
the  Court  that  the  referee  did  not  sit  by  desire  of  defend- 
ant, who  wished  to  destro}'  the  rule  altogether.  Similar 
judgments  have  been  frequently  given  during  the  last  ten 
years,  (a)  ^ 

(a)  The  first  report  was  not  set  aside.  A  new  trial  is  sometimes 
granted  without  setting  aside  former  verdict  (where  special  case  reserved). 
Lofft,  451. 

[The  above  note  is  appended  to  the  abstract  of  this  deci.sion  in  the 
Manuscript  Digest.] 

the  decision  in  Wehsler\<t  Case ;  but  it  would  seem  that  there  was  a  statute 
in  Illinois,  requiring  the  indorsement  "a  true  bill."  See  2d  edition  of 
Breese's  Rep.,  by  Beecher,  145,  n.  1. 

Other  cases  bearing  on  this  topic  are  cited  in  a  note  to  Slate  v.  Freeman, 
in  2  Lead.  Crim.  Cas.  2d  ed.  252,  25:].  See  also  1  Bish.  Cr.  Pro.,  ed.  1866, 
§§  1:56-141;  State  v.  Burf/ess,  1857,  24  Mo.  381  ;  People  v.  Laivrence,  1863, 
21  Cal.  308;   Townsendv.  Stale,  1828,  2  Blackf.  (Ind  )  151,  153. 

1  Sustained  by  Mui/  v.  Haven,  1812,  9  Mass.  325;  Peterson  v.  Loring, 
1820,  1  Greenl.  64. 

If,  upon  recommitment,  one  of  the  referees  refuse  to  act,  and  the  other 


FEBRUARY   TERM,  1807.  137 


Symmes  v.  Libbey. 


ROCKINGHAM,   FEBRUARY  TERM,    1807. 


Mary  Elizabeth  Symmes  v.  Jer.  Libbey,  Appellee. 

If  no  order  of  notice  appears  on  the  minutes  of  the  Probate  Court,  the  Superior 
Court  (on  appeal)  are  not  bound  to  presume  that  notice  has  been  given. 

A  testator  devised  real  estate,  the  interest  arising  from  his  public  and  private 
securities,  with  all  the  remainder  of  his  personal  estate,  to  his  wife,  during  wid- 
owhood, and  devised  to  his  daughter  and  her  heirs  all  the  residue,  remainder, 
and  reversion  of  his  estate,  real  and  personal,  with  a  devise  over  in  the  event 
of  her  death  without  leaving  issue. 

Held,  that  the  daughter,  during  her  mother's  widowhood,  had  such  a  present 
vested  interest  in  remainder  as  entitled  her  to  notice  of  the  settlement  of  the 
executor's  account. 

If  the  judge  of  probate  omit  to  give  notice  to  a  legatee  previous  to  the  allowance 
of  an  executor's  account,  the  decree  will  not,  for  that  reason,  be  reversed  or 
repealed ;  for  it  is  not  binding  on  those  not  notified.  The  remedy  for  the  lega- 
tee not  notified  is  hy  application  to  the  judge  of  probate  to  revise  and  correct 
the  former  account.  In  such  case,  the  judge  of  probate  can  review  his  own 
doings. 

This  was  an  appeal  from  a  decree  of  the  judge  of  probate, 
founded  on  a  petition  presented  to  the  judge  ;  the  appellant 
setting  forth  that  she  was  the  daughter  and  heir  at  law  of 
Hall  Jackson,  deceased,  and  a  legatee  in  his  will,  of  which 
will  Libbey,  the  appellee,  was  executor ;  that  the  executor, 
on  Aug.  5^  1800,  presented  to  the  judge  of  probate  an  account 
of  his  administration,  which  was  examined  and  allowed  the 
same  day,  whereof  no  notice  was  given  to  the  appellant  as 
the  law  required  ;  wherefore  she  prayed  that  the  decree 
allowing  the  account  might  be  reversed,  vacated,  and  held 
void.     Upon   this  petition,   the   decree   was   that   the   prayer 

two  make  a  report  differing  from  the  first  report,  judgment  cannot  be  ren- 
dered on  the  second  report.  Short  v.  Pratt,  1810,  6  Mass.  49G  (as  explained 
in  reporter's  note,  1  Greenl.  67);  Cumberland  v.  North  Yarmouth,  1827, 
4  Greenl.  459. 


138  ROCKINGHAM. 


Symmes  v.  Libbey. 


thereof  be  not  granted.  From  this  decree  the  present  appeal 
is  taken  ;  and  it  is  admitted  that  tlie  same  is  now  regularly 
heibre  this  Court ;  and  tlie  question  now  is  whether  it  shall 
be  affirmed  or  reversed. 

The  cause  was  argued  at  tlie  last  Term  by  Mr.  Freeman^ 
for  the  appellant ;  and  by  Mr.  3Iason,  for  the  ai)pellee. 

Every  thing  material  in  the  argument  was  noticed  in  the 
following  opinion. 

Smith,  C.  J.,  now  delivered  his  opinion. 

The  statute  of  Feb.  3,  1789  (ed.  1805,  165),  expressly 
requires  "that  the  judge  of  probate,  before  he  allow  the 
account  of  any  executor  relating  to  his  executorship,  shall 
cause  the  heirs  of  such  estate  to  be  notified,  in  such  manner 
as  he  shall  think  most  proper,  of  the  time  and  place  for  ex- 
amining and  allowing  such  account."  By  the  word  "  heirs," 
as  here  used,  we  must  doubtless  understand  those  interested 
in  the  estate,  Avhether  devisees,  legatees,  or  heirs  properly  so 
called.  This  provision  of  the  statute  seems  to  be  no  more 
than  what  the  ecclesiastical  law,  that  is,  our  common  law, 
before  required. 

It  has  been  said  by  the  counsel  for  the  appellee,  though 
not  much  insisted  on,  that,  as  it  was  the  duty  of  the  judge 
of  prol)ate  to  cause  notice  to  be  given,  and  he  was  the  judge 
of  the  manner  of  notifying,  we  are  bound  to  presume  that  he 
discharged  his  duty,  and  that  due  notice  has  been  actually 
given.  If  the  judge  of  probate  ordered  notice,  it  must  appear 
on  the  minutes  of  the  proceedings.  There  are  no  such 
minutes,  nor  any  evidence  of  the  fact.  Besides,  though  it  is 
the  duty  of  the  judge  to  cause  notice  to  be  given,  yet  this 
duty  is  to  be  performed  at  the  instance  of  the  executor.  The 
judge  in  this  case  was  not  bound  to  know  that  there  was  any 
such  person  in  existence  as  Mary  Elizabeth  Symmes.  The 
executor  may  have  represented  that  she  was  dead,  or  that 
Mrs.  Jackson,  the  mother,  was  the  only  person  concerned  in 
interest.  We  may  therefore  take  it  for  granted  that  the 
judige  of  probate,  before  he  proceeded  to  allow  the  account 
of  administration  presented  by  the  appellee,  did  not  cause  the 


FEBRUARY   TERM,   1807.  139 

Symmes  v.  Libbey. 

appellant  to  be  notified,  in  any  manner,  of  the  time  and  place 
for  examining  and  allowing  the  account,  and  that  in  fact  she 
had  no  notice,  (a) 

One  thing  is  very  certain,  that  the  remedy  by  appeal  will 
be  wholly  inadequate  in  cases  like  the  present.  The  very 
circumstance  of  examining  and  allowing  the  account  with- 
out giving  notice,  and  in  the  absence  of  those  who  ought  to 
have  been  parties,  which  is  the  grievance  complained  of  in  the 
present  application,  will  of  itself  generally  preclude  redress  by 
appeal. 

The  appeal  is  calculated  to  afford  the  parties  redress  for  the 
errors  of  the  judge  of  probate,  (6)  and  nothing  more. 

But  it  is  further  contended,  on  the  part  of  the  appellee,  that 
the  decree  allowing  the  account  ought  not  to  be  revised  and 
annulled. 

1st.  Because  the  ajjpellant  was  not  entitled  to  notice,  not 
being  interested  at  the  time  in  the  estate,  at  least  so  far  as  it 
could  be  affected  by  the  account  allowed. 

2d.  If  interested  and  entitled  to  notice,  yet  the  decree  is 
not  injurious  to  her,  inasmuch  as  she  is  not  bound  by  it ;  she 
may  proceed  against  the  executor  in  the  same  way  as  if  no 
account  had  been  allowed  ;  this  decree  will  not  protect  ap- 
pellee against  any  just  claim  on  the  part  of  the  appellant. 

I.  As  to  the  question  of  interest  of  the  appellant  in  the 
estate. 

The  reason  why  heirs  are  entitled  to  notice  before  allow- 
ance of  the  administration  account  is  because  their  interest 
may  be  affected  by  it.  When  it  cannot  be  affected,  that  is 
lessened,  then  there  can  be  no  just  reason  for  giving  notice. 
It  is  only  those  whose  interest  is  affected  who  can  complain 
of  an  injury  in  not  being  made  parties. 

(a)  It  appears  by  the  files  that  Mrs.  Jackson,  the  mother  of  the  appel- 
lant, the  only  person,  except  the  appellant,  concerned,  co-executrix,  and 
who  joined  in  proving  the  will,  signified  her  consent  to  the  allowance  of 
the  account,  Aug.  4,  1800.     She  died  April  1,  following. 

(b)  It  is  true,  persons  who  were  not  in  fact  parties  before  the  judge 
may  appeal ;  but,  unless  they  have  notice,  it  is  not  to  be  presumed  they 
will  have  any  knowledge  of  the  decree. 


140  ROCKINGHAM. 


Symme8  v.  Libbey. 


Let  US  see  what  interest  the  appellant  has  by  the  will  in  the 
estate  of  her  late  father ;  and  whether  the  administration  ac- 
count, as  allowed,  can  in  any  way  affect  it. 

By  the  will  (proved  Oct.  18,  1797,  by  appellee  and  Mary 
Jackson  ;  tiie  appellant  was  also  named  executrix,  but  did  not 
join  in  the  j)robate),  there  is  devised  to  Sarah  Little,  testator's 
sister,  the  use  and  occupation  of  a  certain  part  of  a  dwelling- 
house,  as  long  as  she  shall  remain  unprovided  for,  absent 
from  her  husband,  or  a  widow,  and  shall  choose  to  reside  in 
it  herself. 

All  the  rest  and  residue  of  the  real  estate,  the  interest 
arising  from  the  testator's  public  and  private  securities,  with 
all  the  remainder  of  his  personal  estate,  are  devised  to  his 
wife  during  her  widowhood  ;  but,  in  case  she  marry,  then,  in 
lieu  of  this  provision,  she  is  to  take  what  the  law  gives  the 
widow  of  an  intestate. 

All  the  rest,  residue,  remainder,  and  reversion  of  the  testa- 
tor's estate,  real  and  personal,  are  devised  to  the  appellant 
and  her  heirs ;  if  she  die  without  leaving  issue,  then  there  is  a 
devise  over. 

What  is  not  given  to  the  mother  is  bequeathed  to  the 
daughter,  as  to  the  public  and  private  securities. 

When  the  interest  of  securities  is  given  absolutely,  without 
any  limitation,  it  is  equivalent  to  a  gift  of  the  securities  them- 
selves. But  when  the  interest,  as  in  this  case,  is  given  for 
a  limited  time  only,  it  is  not  a  bequest  of  the  securities,  but 
an  annuity  to  the  amount  of  the  interest  accruing,  and  the 
securities  themselves  are  bequeathed  to  the  appellant.  The 
executors  can  hold  the  securities  and  pay  over  the  interest  to 
the  mother,  but  the  daughter  has  a  vested  interest  which  she 
might  devise,  and  which,  in  case  of  her  dying  intestate,  would 
go  to  her  heirs  or  legal  representatives. 

As  to  the  rest  of  the  personal  estate,  it  is  bequeathed  to 
Mrs.  Jackson  while  she  shall  remain  the  testator's  widow. 

It  is  contended  that  this  gives  Mrs.  Jackson  the  absolute 
property,  and  that  the  remainder  to  the  daughter  is  too  remote, 
and  so  void.  It  is  well  settled  "  that,  when  the  words  of  a 
devise  or  bequest  would  give  an  estate   tail   in  real  estate, 


FEBRUARY   TERM,   1807.  141 


Symmes  v.  Libhey. 


when  applied  to  personalty  they  give  the  absolute  property, 
unless  yon  can  find  in  the  will  something  to  show  the  testator 
meant  otherwise."  3  Ves.  Jr.  101  ;  2  Fearne,  161,  169,  170, 
&c.  ;  2  Bro.  Ch.  C.  575  ;  3  Atk.  288. 

And  it  was  formerly  held,  that  a  personal  thing  given  to 
one  for  life,  or  even  for  a  day,  was  a  gift  for  ever,  and  could 
not  bear  a  limitation  over  ;  but  the  construction  now  is  that 
such  devise  passes  only  the  use  and  profits,  and  not  the  thing 
itself.  1  Peere  Wms.  1,  502,  651  ;  2  Atk.  (82),  321 ;  3  Atk. 
283;  2  Fearne,  168,  169-175,  177,  186,  194,  &c.  ;  2  Bro. 
Ch.  C.  575  ;  1  Bro.  Ch.  C.  270,  280,  285 ;  Co.  Litt.  20  a 
(n.  5).  Such  devises  are  very  common  in  this  State,  and 
have  been  always  construed  according  to  what  has  been  just 
mentioned  as  the  modern  law  in  England  on  the  subject. 

The  result  is,  that,  as  to  the  real  estate,  the  mother  was 
tenant  during  her  remaining  the  testator's  widow,  and  the 
daughter  entitled  to  the  remainder.     As  to   the  public    and 
private  securities  on  interest,   the  mother,  during  the  same 
term,  was  entitled  to  the  interest  arising  or  accruing,  and  the 
daughter  was    entitled  to  the  securities  and  to  the  interest 
when  the  mother's  annuity  or  charge  on  them  ceased.     As  to 
the  rest  of  the  personal  estate,  the  mother  was  entitled  to  the 
use  and  profits  during  her  widowhood  ;  they  were  then  to  be 
the  property  of  the  daughter.     Any  thing,  therefore,  which 
may  destroy,  or  unjustly  occasion  the  sale  of,  the  real  estate 
or  the  securities,  or  exhaust  or  lessen  the  other  personal  estate, 
except  the  mere  use  and  occupation  of  the  mother,  is  an  in- 
jury done  to  the  daughter  ;  it  affects  her  interest.     It  really 
affects  her  interest  more  than  it  does  that  of  the  mother,  who 
has  only  the  use  during  her  widowhood  ;  her  estate  expired 
April  1,  1805  L1801?]. 

It  would  not  be  necessary  to  give  notice  to  one  who  should 
have  a  mere  contingent  interest,  which,  at  the  time,  had  not 
become  vested,  and  which  might  never  vest.  The  person 
entitled  to  notice  must  be  one  who  has  a  present,  a  vested, 
interest ;  but  that  may  be  of  a  remainder  as  well  as  of 
property  in  possession.  For  example,  in  this  case,  it  was 
not   necessary    to   notify    Mrs.    Little,   or    the   persons    next 


142  ROCKINGHAM. 


Symmes  v.  Libbej. 


in  remainder  after  the  appellant,  because  it  depends  on  a 
contingency  whether  these  persons  will  ever  have  any  in- 
terest in  the  estate.  But  the  appellant  then  had  a  vested 
interest. 

It  is  not  necessary  to  decide  whether  it  is  absolutely  neces- 
sary to  notify  one  at  the  time  interested  in  the  estate,  but  who 
is  not  to  be  affected  by  the  account  as  stated  for  allowance, 
and  actually  allowed.  That  is,  if  we  suppose,  in  this  case,  that 
Mrs.  Jackson  were  the  absolute  owner  of  the  personal  estate 
other  than  the  securities,  and  the  mother's  estate  more  than 
sufficient  (as  it  would  have  been)  to  reimburse  all  the 
advances  made  by  the  executor,  and  for  which  he  claimed 
allowance  and  reimbursement,  and  the  estate  administered  on 
were  the  mother's  and  not  the  daughter's  (z.  e.  the  estate 
credited  in  the  administration  account),  it  would  seem  not 
necessary  to  notify  the  daughter.  She  could  not  complain 
if  the  executor  wasted  the  estate  of  her  mother.  Her  in- 
terest was  not  affected,  and  her  interest,  as  the  daughter  or 
probable  heir  to  the  mother,  would  not  be  entitled  to  any 
regard. 

The  conclusion  I  draw  from  these  premises  is,  that  the 
appellant,  having,  at  the  time  the  account  was  presented  for 
allowance,  an  interest  in  the  estate,  and  which  may  be,  and 
indeed  must  be,  materially  affected  by  the  account  allowed, 
was  entitled  to  notice. 

It  has  been  said  tliat  the  estate  might  never  come  to  the 
daughter ;  the  mother  might  have  wasted  it  before  her  death  ; 
the  daughter  could  not  compel  the  mother  to  give  security  ;  (a) 
and  we  have  no  court  of  chancery  to  protect  it  against  a  sale 
by  the  mother. 

To  this  it  may  be  answered.  The  mother  had  a  right  to 
occupy  and  use :  whatever  effect  this  might  have  in  consum- 
ing or  lessening  the  value,  the  daughter  can  have  no  remedy, 
for  she  has  suffered  no  injury.  But,  if  the  mother  should 
waste  or  dispose  of  the  property,  it  may  at  least  be  questioned 
whether  her  bonds  would  not  be  forfeited.     Her  bonds  oblige 

(</)  An  inventory,  not  security,  is  now  usually  given  in  such  case. 
2  Atk.  (82). 


FEBRUARY   TERM,  1807.  143 

Symmes  v.  Libbey. 

her  to  administer  the  estate  according  to  the  will,  and  her 
office  of  executrix  obliges  her,  and  Mr.  Libbey  also,  safely  to 
keep  this  property,  that  the  objects  of  the  testator's  bounty 
may  not  be  disappointed,  (a) 

But,  however  this  may  be,  owing  to  a  defect  in  our  jurispru- 
dence, if  wrong  maybe  committed  with  impunity,  or  injustice 
done  without  possibility  of  redress,  it  is  no  reason  why  Mr. 
Libbey  should  settle  his  account  without  giving  notice  to 
those  interested.  If  our  probate  courts,  or  other  courts,  have 
not  powers  enough  to  protect  the  rights  of  legatees,  it  is  no 
reason  why  they  should  deprive  legatees  of  the  power  of  pro- 
tecting themselves.  It  does  not  appear  to  be  conclusive  rea- 
soning that,  because  our  courts  cannot  completely  guard  and 
defend  the  interest  of  one  in  remainder  of  personal  property, 
against  the  person  having  the  life  estate,  or  the  use  and  prof- 
its only  for  a  season,  that  therefore  the  property  is  absolute 
in  the  first  taker. 

II.  We  now  come  to  the  second  question  ;  namely,  whether 
what  is  proposed  by  this  petition  is  the  proper  remedy. 

It  has  been  said  that  the  remedy  cannot  be  by  repeal, 
because  here  was  no  want  of  jurisdiction  and  no  false  sugges- 
tions. But  this  is  not  correct ;  for  the  judge  of  probate  may 
have  been  led  into  the  error  of  omitting  to  order  notice,  on 
the  false  suggestion  of  the  executor,  that  there  was  no  person 
entitled.  Besides,  it  was  the  duty  of  the  executor  to  have 
requested  an  order  of  notice,  general  or  special,  and  the 
executor  omitting  to  do  his  duty  will  warrant  a  repeal  just 
as  much  as  doing  it  amiss.  In  the  case  of  administration 
granted,  it  is  a  good  cause  of  revocation  that  those  who  ought 
to  have  been  cited  were  not  cited.  Love.  Wills,  19 ;  Com. 
Dig.  Admr.  (B.  8).  (6)  Yet  it  must  be  confessed  there  are 
serious  difficulties  in  annulling  a  decree  allowing  an  adminis- 
tration account.     Suppose  the  decree  carried  into  execution. 

(a)  Richards  v.  Baker,  2  Atk.  321,  semble,  324. 

(6)  Toll.  Ex.  93;  4  Burn,  426;  Manuscript,  Descent,  &c.,  504,  1117. 
See  1  Mass.  200,  Y?here  it  would  seem  that  probate  decree  of  this  kind 
reverded,  because  founded  on  report  of  referees  where  the  law  does  not 
allow  of  reference. 


144  ROCKINGHAM. 


Symnies  v.  Libbey. 


To  annul  the  decree  without  any  further  proceedings  will  be 
of  no  avail.  The  only  renied}-,  in  such  case,  is  compelling  the 
administrator  to  settle  a  new  account,  in  which  he  must  be 
charged  with  what  was  unjustly  allowed  in  the  old.  This  end 
will  be  just  as  well  attained  by  declaring  that  the  account 
allowed  without  due  notice  given  is  no  protection  to  the 
administrator  ;  and  that  those  interested,  and  who  were  not 
notified,  may  call  upon  him  in  the  Probate  Court  to  rectify  its 
errors,  and  submit  to  revision,  and  to  account  for  what  may 
be  found  wrong  on  review. 

To  annul  the  whole  decree  would  also  in  many  cases  be 
doing  more  than  what  is  necessary  or  just.  Suppose  ten  per- 
sons interested  in  the  administration  account ;  nine  notified, 
and  one  omitted.  The  decree  may  be  right  as  it  respects  the 
nine ;  at  any  rate,  they  have  been  fully  heard,  or  might  have 
been  so.  To  reverse  the  decree  as  to  the  tenth  person,  only, 
who  was  not  notified,  would  be  saying  that  a  new  account 
may  be  settled  as  it  respects  him.  Would  it  not  come  to  the 
same  thing  to  say  that  the  decree  was  binding  on  the  persons 
notified,  and,  as  to  the  one  omitted,  that  he  might  compel  the 
executor  to  account  with  him  for  what  was  unjustly  allowed  ? 
Why  should  the  executor  be  compelled  to  produce  vouchers  a 
second  time  against  those  who  had  an  opportunity  of  examin- 
ing them  before?  In  the  Probate  Court,  each  defends  pro 
interesse  suo  ;  one  is  not  obliged  to  join  with  others,  is  not 
affected  by  their  doings  or  omissions,  (a)  The  doctrine  that 
a  decree  must  be  reversed  if  one  heir  not  notified  leads  also  to 
this  inconvenience,  if  not  absurdity,  that  oftentimes  a  just 
decree  will  be  reversed  ;  for  the  question  is  only,  Was  due 
notice  given  ?  Whereas,  by  holding  that  the  account  may  be 
opened  and  revised,  the  decree  will  be  reversed  if  altogether 
wrong,  rectified  if  partly  so,  and  suffered  to  remain  as  it  is  if 
just. 

For  these,  and  many  other  reasons  that  might  be  mentioned, 
all  parties  would  be  gainers  by  allowing  the  decree  to  be 
conclusive  on  the  parties,  and  reviewable  by  those  who  were 
not  notified. 

((/)  Decrees  are  in  their  nature  several;  they  bind  the  parties  only. 


FEBRUARY   TERM,  1807.  145 

Symmes  v.  Libbey. 

It  is  conceived  that  such  are  the  authorities  and  the  usage 
in  the  ecclesiastical  courts  in  England. 

Swinburne  on  Wills,  p.  468,  treating  of  the  manner  of  mak- 
ing an  account,  says  "  that  the  creditors,  legatories,  and  all 
others  having  interest,  are  to  be  cited  to  be  present  at  the 
making  of  the  account ;  otherwise  the  account  made  in  their 
absence  (and  they  never  called)  is  not  prejudicial  unto  them." 

In  the  same  manner  it  is  laid  down  in  Burn  (4  Burn,  426), 
a  respectable  authority.  No  case,  it  is  apprehended,  can  be 
found,  of  a  decree  of  this  kind  reversed  for  want  of  notice  to 
those  interested.  They  must  have  redress.  It  is  against 
every  principle  of  natural  justice  that  they  should  be  bound 
by  decrees  to  which  they  were  no  parties,  and  could  not 
become  such.  The  redress  has  been  by  allowing  them  to 
contest  it  when  attempted  to  be  put  in  execution  ;  to  have  it 
revised  and  rectified  if  wrong  ;  and,  if  completely  executed, 
to  compel  the  accountant  to  refund  or  account  anew  for  what 
he  has  unjustly  received. 

It  is  not  necessary  that  the  Court  should  pronounce  judg- 
ment at  this  Term.  The  appellant  may  proceed  in  the  Pro- 
bate Court,  to  obtain  a  revision  of  the  account  heretofore 
allowed.  If  this  should  be  resisted  by  the  executor,  it  will 
bring  into  view  the  question  now  agitated,  whether  such  a 
decree  is  conclusive  on  the  appellant.  I  am  of  opinion  that  it 
is  not,  but  we  shall  then  have  an  opportunity  of  viewing  the 
matter  in  all  its  bearings ;  we  shall  be  able  to  see  a  little  of 
the  practical  application  of  the  principal,  a  thing  always  to  be 
desired  in  establishing  rules. 

LiVERMORE,  J.,  agreed  in  the  result  as  stated  by  the  Chief 
Justice. 

WiNGATE,  J.,  absent. 

Judgment  was  not  pronounced  at  this  Term,  (a) 

(a)  Remedy  must  be  :  (1)  by  reversing  former  decree,  and  so  leaving 
parties  as  before  any  account  settled ;  (2)  by  considering  the  decree  as 
binding  on  those  notified;  and,  without  reversal,  as  reviewable  by  those 
not  notified  by  new  proceedings  in  the  Probate  Court;  (3)  by  affirming  or 
reversing  the  decree  in  part,  i.  e.  by  making  it,  on  this  application,  such  as 
it  should  have  been. 

10 


146  ROCKINGHAM. 

Symmes  v.  Libbey. 

The  judgment  may  be,  that  the  decree  of  the  judge  of  pro- 
bate dismissing  this  petition  be  affirmed  (it  would  seem  to  be 
improper  to  affirm  the  decree  comi)lained  of).  The  reasons 
may  be  given  ;  the  proper  remedy  being  by  application  to  the 
judge  of  probate  to  revise  and  correct  the  former  account,  to 
which  this  decree  is  no  bar.^ 

1  I.  The  decision  that  notice  would  not  be  presumed  is  sustained  by 
Hathaway  v.  Clark,  1827,  5  Pick.  490.  Compare  IIubbakd,  J.,  in  Marcy 
V.  Marcy,  1843,  G  Met.  (Mass.)  360,  308,  369,  with  Thomas,  J.,  in  Jenks 
V.  Hoicland,  18.55,  3  Gray,  536,  538. 

Where  there  is  no  statute  requiring  notice  to  parties  in  interest  to  be 
present  at  the  hearing,  the  record  of  the  Probate  Court  need  not  contain 
any  thing  relative  to  notice  or  appearance;  and  facts  as  to  this  may  be 
proved  by  parol  in  abatement  of  an  appeal.  JUscoz^s  Appeal,  1861, 
29  Conn.  561. 

II.  As  to  the  daughter's  vested  remainder,  see  Burleigh  v.  Clouyh,  1872, 
52  N.  H.  267. 

III.  It  is  now  held  that  an  appeal  may  be  taken  from  a  void  decree. 
Such  appeals,  "  though  not  in  strictness  necessary,"  "  may  be  very  appro- 
priate;" as  the  reversal  or  annulment  of  the  decree  will  "place  upon 
the  record  the  real  truth  of  the  case,  and  save  the  proceedings  from  all 
appearance  of  inconsistency."  See  Church,  J.,  in  Slurges  v.  Peck,  1837, 
12  Conn.  139,  141,  142;  Metcalf,  J.,  in  Petlee  v.  Wilmarth,  1862, 
5  Allen,  144;  Bell,  C.  J.,  in  Morgan  v.  Dodge,  1862,  44  N.  H.  255,  259. 

IV.  A  decree  of  partition  by  the  Probate  Court  is  void  as  against  an 
attaching  creditor  of  an  heir,  who  is  not  notified.  Procter  v.  Newhall, 
1820,  17  Mass.  81,  91,  92  (and  see  Munroe  v.  Luke,  1837,  19  Pick.  39). 
A  decree  assigning  the  whole  estate  to  one  heir,  she  paying  the  others 
respectively  a  certain  sum,  is  void  as  against  an  heir  absent  from  the 
State,  for  whom  no  agent  was  appointed:  Smith  v.  Rice,  1814,  11  Mass. 
507  ;  but  is  good  as  against  another  heir  who  assented  to  the  assignment, 
and  received  the  sum  awarded  to  her:  Rice  v.  Smith,  1817,  14  Mass.  431. 

An  administration  account  was  settled  in  the  Probate  Court  in  1827, 
but  there  was  no  legal  notice  given,  as  there  was  no  guardian  over  the 
heirs,  who  were  then  minors.  In  1851,  the  Probate  Court  adjudged  that 
the  decree  of  1827  was  not  conclusive,  on  account  of  the  want  of  notice, 
and  laid  that  settlement  entirely  aside,  and  re-examined  the  accounts  of 
the  administrator  from  the  beginning,  and  decreed  a  balance  against  him. 
On  appeal  from  this  decree,  it  was  held,  that,  as  no  cause  was  shown  for 
the  delay,  it  was  too  late  to  open  the  account,  and  the  decree  was  reversed. 
Child's  Appeal,  1851,  23  N.  II.  225. 


FEBRUARY   TERM,  1807.  147 


Robinson  v.  Clarke. 


Bradbury  Robinson  v.  Daniel  Clarke. 

An  action  for  money  had  and  received  does  not  lie  to  recover  back  money  paid 
under  a  judgment  for  costs  wliich  ought  not  to  have  been  taxed,  and  wliicli 
were  allowed  in  consequence  of  a  false  certificate  of  the  creditor. 

This  was  an  action  for  money  had  and  received,  *$50. 

The  phiintiff  claimed  to  recover  two  sums,  one  of  $3.78,  and 
one  of  $30. 

That  part  of  the  manuscript  report  which  relates  to  the 
claim  of  $3.78  is  here  omitted. 

As  to  the  claim  of  $30,  the  facts  were,  that  in  the  taxa- 
tion of  costs,  in  a  suit  wherein  Clarke  had  judgment  against 
Robinson,  Clarke  certified  that  six  witnesses  travelled  and 
attended  who  never  did  ;  and  their  fees,  $30  in  the  whole, 
were  taxed.  It  is  assumed,  in  the  opinion  of  the  Court,  that 
Robinson  paid  the  judgment  which  included  this  sum  ;  and 
the  same  is  to  be  inferred  from  the  manuscript  statement 
of  facts. 

The  questions  submitted  to  the  Court  were,  whether  the 
plaintiff  was  entitled  to  recover  these  sums,  or  either  of  them.^ 

The  opinion  of  the  Court  wns  now  delivered  by  Smith,  C.  J. 

As  to  the  latter  sum,  $30,  it  ought  not  to  have  been 
included  in  the  bill  of  costs  taxed  against  the  present  plaintiff. 
But  it  makes  a  part  of  the  judgment ;  and  this  action  will  not 
lie  to  recover  back  money  paid  under  a  judgment  of  a  court 
of  competent  jurisdiction,  as  long  as  the  judgment  remains  in 
force,  (a)  There  is  no  ground  of  distinction  betvv^een  the 
damages  and  costs.  Errors  in  the  one  stand  on  the  same 
footing  in  this  respect  [as  errors  in  the  other].  They  are  both 
awarded  by  the  Court. 

(a)  See  Henry  v.  Anrn^,  [reported  ante~\. 
^  Statement  of  facts  by  compiler. 


148  ROCKINGHAM. 


Robinson  v.  Clarke. 


It  is  contended  by  the  plain tijff's  counsel,  that  this  item  was 
inserted  in  the  bill  of  costs  by  the  fraudulent  act  of  Clarke, 
and  that  the  plaintiff  may  waive  the  fraud  and  sue  for  the 
money  actually  obtained  thereby,  (a)  It  is  true  that  there 
are  many  cases  where  a  party  defrauded  may  maintain  this 
action  to  recover  back  the  money  unjustly  taken  from  him. 
But  the  law  will  not  presume,  nor  will  it  admit,  in  this  form 
of  action,  of  an  allegation,  that  a  judgment  is  founded  on 
fraud,  that  a  sura  of  money  awarded  for  costs  ought  not  to 
have  been  awarded.  As  long  as  this  judgment  remains  in 
force,  we  are  bound  to  presume  that  the  legal  costs,  and 
those  only,  were  awarded.  Money  paid  under  a  judgment 
fraudulently  obtained  cannot  be  recovered  back  in  this  form 
of  action. 

It  has  been  also  said  that  defendant  cannot  in  conscience 
retain  this  money  to  which  he  had  no  just  claim,  and  which 
indeed  he  obtained  by  means  of  his  own  fraudulent  act.  The 
answer  is,  that,  in  a  court  of  law,  we  cannot  receive  evidence 
of  this  kind  in  this  form  of  action.  It  would  be  trying,  in  an 
action  for  money  had  and  received,  the  merits  of  a  judgment 
obtained  in  another  suit.  (6) 

Plaintiff  had  judgment  for  $3.78  only?- 

(a)  Cowp.  372,  414,  416,  419. 

Note.     What  mode  of  redress  can  be  pursued? 

Error  will  lie  for  refusal  of  costs  where  entitled.  Colman's  Cases 
(N.  Y.),117. 

(6)   Grafton  Superior  Court,  October,  1807. 

Porter  v.  Lewis.  Money  had  and  received  to  recover  back  $8  taxed, 
S4  for  a  grand  juror  and  $1  for  a  petit  juror,  as  witnesses  for  Lewis  in  an 
action  formerly  tried  between  the  present  parties,  in  which  Lewis  recovered 
costs,  on  the  ground  that  these  witnesses  should  not  have  been  taxed. 

Per  Cukiam.  On  the  authority  of  Robinson  v.  Clarke  this  action  can- 
not be  maintained.  Plaintiff  nonsuit. 

^  See  Lyfordv.  Demeritt,  32  N.  H.  234;  Curtis  v.  Fairbanks,  16  N.  H. 
542;  Hillsborough  v.  Nichols,  46  N.  H.  379. 

As  to  when  a  judgment  for  costs  may  be  impeached,  on  the  ground  of 
fraud,  by  sureties  in  a  bond,  given  during  the  pendency  of  the  action,  con- 
ditioned for  the  payment  of  such  costs  as  should  be  recovered,  see  Great 
Falls  Man,  Co.  v.  Worster,  1863,  45  N.  H.  110. 


FEBRUARY   TERM,  1807.  149 


State  V.  Page. 


STRAFFORD,   FEBRUARY  TERM,   1807. 


State  v.  Samuel  Page. 

Indictment  for  forgery.  Defendant  held  genuine  negotiable  notes  against  A.  He 
forged  otliers  like  them,  and,  on  payment,  gave  up  the  forged  ones,  and 
retained  the  genuine. 

Held,  forgery. 

Indictment,  charging  defendant  with  forging  and  counter- 
f'iiting  two  notes,  Ebenezer  Kelley  to  Samuel  Page  or  order ; 
$1,539.25,  payable  on  demand,  with  interest,  date  Aug.  25, 
1804 ;  and  $260,  payable  on  demand,  with  interest,  date 
Nov.  21,  1803 ;  and  uttering  the  same  notes. 

Plea  :  not  guilty. 

The  facts  were  :  that  Kelley  had  given  genuine  notes  of 
the  tenor  of  those  described ;  had  paid  them ;  defendant 
forged  notes  ever}'-  way  resembling  the  genuine,  and  gave 
them  up  to  Kelley  as  the  genuine,  to  be  cancelled,  retaining 
the  true  notes  in  his  possession. 

The  indictment  was  for  forging  the  notes  he  gave  up  to  be 
cancelled  on  payment. 

Defendant  convicted  and  sentenced. 

N.  B.  Defendant  immediately  broke  jail  and  escaped. 


150  HILLSBOROUGH. 


Cilley  V.  Cayford. 


HILLSBOROUGH,    APRIL   TERM,    1S07. 


Aaron  Cilley  v.  John  Cayford. 

Id  the  grant  of  the  township  of  Weare,  it  was  provided  tliat  one  share  of  land 
should  "  be  for  and  toward  the  support  of  the  gospel  ministry  there  for  ever." 

Held,  that  this  share  belonged  to  the  town  ;  that  a  minister  settled  over  a  church 
and  incorporated  religious  society  in  Weare  could  not  hold  it  against  the  town  ; 
and  that  the  town  could  sell  the  land  and  divide  the  proceeds  equally  among 
the  different  Christian  denominations  therein. 

A  town  voted  to  divide  the  ministerial  lands  among  the  religious  societies  having 
a  right  or  claim  to  the  same.  A  committee  were  chosen  to  make  division,  and 
they  reported  a  division.     The  town  voted  not  to  accept  the  report. 

Held,  no  division  or  grant. 

This  was  ejectment,  to  recover  lot  No.  16,  second  range 
from  north  side  of  Weare,  containing  one  hundred  acres,  more 
or  less,  thus  bounded,  &c.  The  declaration  stated  that  the 
inhabitants  of  Weare  were  seised,  Oct.  1,  1804,  and  by  deed 
conveyed,  leased,  and  demised  to  plaintiff,  for  the  term  of 
999  years,  since  which  defendant  has  dispossessed  and  ejected 
plaintiff. 

Plea :  not  guilty. 

On  the  trial,  at  April  Term,  1806,  the  title  of  each  party  was 
introduced.  As  the  questions  raised  were  matters  of  law,  it 
was  agreed  to  turn  it  into  a  case  stated ;  which,  at  October 
Term  last,  was  done,  and  was  in  substance  [as  follows]  :  — 

Plaintiff's  Title. 

Oct.  1,  1804,  lease  from  Whittle,  Atwood,  and  Philbrick, 
committee  of  Weare,  duly  authorized  to  sell  the  parsonage 
lands,  viz.,  lot  No.  16,  «fcc.,  to  plaintiff;  consideration  $2,408; 
premises  described  in  the  writ ;  to  hold  999  years. 

March  13,  1804,  vote  of  Weare  to  sell  the  ministerial  lands, 
and  that  each  denomination  of  Christians  therein  shall  have  an 
equal  proportion  of  the  proceeds  of  said  sale. 


APRIL   TERM,  1807.  151 


Cilley  V.  Cayford. 


Plaintiff  entered  by  virtue  of  the  deed  of  Oct.  1,  1804,  and 
was  ejected  by  defendant. 

Weare  was  granted  by  the  Masonian  proprietors,  Sept.  20, 
1749,  to  eighty  persons,  in  one  hundred  shares,  —  "one  share 
for  the  first  minister  of  the  gospel  that  shall  be  settled  on  said 
land,  and  continue  there  during  his  life,  or  until  he  shall 
be  regularly  dismissed;"  "one  other  of  said  shares  to  be  for 
and  toward  the  support  of  the  gospel  ministry  there  for 
ever." 

The  demanded  premises  are  part  of  this  [last-named]  share. 

In  1779,  the  town  of  Weare  chose  a  committee  to  take  care 
of  and  lease  out  the  ministerial  land,  who  leased  the  demanded 
premises. 

Mr.  Wood,  minister  of  Weare,  afterwards  entered  on  the 
premises,  and,  in  virtue  of  his  ministerial  office,  received  the 
rents  a.nd  profits  till  his  death,  which  happened  on 

The  town  afterwards  continued  to  lease  the  premises  annu- 
ally, till  the  defendant  entered  in  1803. 

Defendant's  Title. 

Defendant,  Oct.  20,  1802,  at  the  request  of  a  church  and  a 
number  of  individual  inhabitants  of  Weare  (no  vote  of  the 
town  for  the  purpose),  was  regularly  ordained  to  the  work  of 
the  ministry  over  and  among  said  church  and  individuals.  June 
15,  1805,  said  individuals  were  incorporated  into  a  distinct 
Congregational  religious  society  in  Weare  (poll  parish). 

In  1803,  defendant,  in  his  ministerial  character,  entered  into 
the  premises,  claiming  the  same  in  his  said  character,  and  has 
held  the  possession  ever  since. 

April  25,  1808,  vote  of  Weare  "to  divide  the  ministerial 
land  among  the  religious  societies  having  a  right  or  claim  to 
the  same."  A  committee  was  appointed  to  choose  a  committee 
to  make  division. 

Robert  Alcock,  Josh.  Morse,  and  B.  Peirce,  were  chosen 
for  the  purpose.  May  25,  1803,  these  persons  reported  a 
division;  they  found  two  religious  societies  entitled ;  allotted 
the  premises  to  the  religious  society  on  the  north  side  (Mr. 
Cayford's). 


152  HILLSBOROUGH. 


Cilley  V.  Cayford. 


March  18,  1804,  vote  of  Weare  not  to  accept  of  the  report 
of  the  committee  chosen  by  the  town  to  make  division  of  the 
ministerial  lands,  (a) 

The  opinion  of  the  Court  was  now  delivered  by  Smith,  C.  J. 

After  stating  the  case,  he  observed  that  the  question  was, 
whether  the  plaintiff  was  entitled  to  recover. 

To  support  plaintiff's  title,  Weare  must  be  the  owner  at  the 
time  they  undertook  to  make  the  lease  declared  on.  If  it  did 
not  belong  to  Weare,  who  was  the  owner?  The  State?  The 
Masonian  proprietors  ? 

The  State  never  has  claimed  any  lands  similarly  circum- 
stanced. The  Masonian  proprietors  have  never  set  up  any 
claim,  even  where  the  lands  so  granted  have  been  misapplied ; 
sold,  the  mone}'  appropriated  to  other  purposes. 

To  sell  in  the  manner  Weare  has  done  is  not  a  misapplication 
of  this  right. 

A  grant  in  this  form  has  always  been  considered  as  a  grant 
to  Weare.  The  school  lot  is  the  property  of  the  town.  A 
right  reserved  for  the  use  of  a  school  and  for  the  use  of  the 
ministry  in  Weare  is  a  grant  to  the  inhabitants  of  Weare  for 
these  objects.     The  appropriation  belongs  to  the  town. 

A  grant  to  the  first  settled  minister  is  different. 

To  support  defendant's  title,  he  must  either  claim  under 
Weare,  or  independent  of  Weare,  at  least  of  any  act  or  vote 
of  the  town. 

I.  His  claim  under  Weare. 

Has  the  town  voted  this  lot  to  Cayford  ?  If  they  have,  it 
must  be  by  votes  of  April  25,  1803,  and  the  doings  under  it. 

1.  These  votes  do  not  purport  a  conveyance,  but  to  divide : 
if  he  had  any  right,  it  will  be  considered  hereafter. 

2.  This  is  not  a  partition.  The  most  that  can  be  said  is, 
that  it  is  an  agreement  to  divide. 

3.  Submission  to  arbitrators  to  divide  is  not  partition.  The 
most  that  can  be  said  is,  that  it  makes  them  liable  for  breach 
of  the  award. 

(a)  There  may  be  some  trifling  variation  between  the  case  in  evidence 
and  the  case  stated.     This  account  is  substantially  correct. 


APRIL   TERM,  1807.  153 

Cilley  V.  Cayford. 

4.  But  this  vote  is  neither  division  nor  submission  to  others 
to  divide  for  them,  but  an  appointment  of  a  committee  to  make 
division  afterwards,  to  be  acted  on  by  the  town,  and  either  ac- 
cepted or  disallowed  at  their  pleasure  ;  and  afterwards  actually 
disallowed. 

This  is  evident,  because  neither  Cayford,  his  society,  nor  any 
other  persuasion,  is  bound.  Of  consequence,  the  town  was  not 
bound.  The  terms  made  use  of  in  the  vote  and  report  show 
that  this  was  the  understanding  of  all  parties  who  acted.  The 
words  "  committee,"  "  report,"  "  submitted,"  &c.,  imply  that 
nothing  binding  was  intended. 

II.  Defendant's  claim,  independent  of  the  doings  of  Weare, 
will  be  found  to  have  as  little  foundation. 

The  defendant  must  contend  that  a  right  granted  or  re- 
served for  and  toward  the  support  of  the  gospel  ministr}^  in  a 
town  shall  inure  to  whoever  shall  be  a  gospel  minister  in  the 
town,  though  not  connected  with  the  town.  A  church  is 
formed  in  Weare  (a  church  is  a  company  of  people  voluntarily 
combined  together  by  covenant  for  the  worship  of  God :  Plat- 
form, c.  6,  et  ante,  202),  consisting  of  three  persons;  ten  more 
join  together  as  a  society' ;  these  settle  a  minister ;  he  then 
becomes  entitled  to  all  the  lands  in  Weare  granted  for  and 
toward  the  support  of  the  gospel  ministry  there,  i.  e.  in  Weare. 
For  what  lengtii  of  time  ?  Are  all  the  rest  of  the  town  cut  off 
from  any  right?  Shall  all  the  rest  have  one  half?  Suppose 
thirteen  other  persons  afterwards  settle  another  minister  ;  shall 
they  divide  with  the  first  thirteen  ?  Shall  a  third  set  call  for 
a  new  division  ?  All  this  is  absurd,  and  therefore  it  cannot  be 
the  true  meaning  of  the  grant.  For  the  support  of  the  minis- 
try in  or  of  Weare  means  such  ministr^'^  as  the  town,  as  a 
corporate  body,  employ. 

The  Congregational  Society,  incorporated  in  1795,  are  no 
parties  to  this  suit.  If  they  were,  they  have  no  lot  or  part  in 
these  lands,  any  more  than  any  other  religious  society  in  the 
State.  It  does  not  appear,  besides,  how  defendant  is  connected 
with  that  society. 

This  case  does  not  raise  the  question,  what  shall  be  done  on 
division  of  a  town  like  Weare  by  limits ;   whether  the  lands 


154  HILLSBOROUGH. 


Cilley  V.  Cayford. 


shall  be  divided  equally,  or  in  what  proportions  ;  whether  the 
legislature  have  a  right  to  declare  this  effect  of  division,  and 
whether  the  new  corporation  can  take,  if  they  do  not. 

As  a  gospel  minister  living  in  Weare,  settled  over  and  among 
a  church  and  individuals  there,  defendant  has  no  right  to  the 
lands  granted  for  the  support  of  the  gospel  ministry  of  Weare  ; 
and  these  individuals  being  afterwards  incorporated  into  a 
relicjious  societv  makes  no  difference.  If  anv  minister  can 
claim  title  to  these  lands  (which  is  not  admitted),  it  must 
be  a  minister  settled  by  Weare.  But  it  is  conceived  that 
no  minister  can,  except  there  be  an  appropriation  by  the 
town.     He  must  hold  under  the  town. 

The  parties  entered  judgment,  hy  agreemetit,  for  plaintiff.^ 

Judge  WiNGATE  dissented  from  this  decision. 

1  Lands  or  shares  set  apart  in  the  original  charter,  or  grant,  of  a  town, 
for  the  use  of  the  ministry,  vest  absolutely  in  the  town,  and  are  not  held  in 
trust  for  pious  uses.  This  is  so  decided  upon  the  ground  of  ancient  usage 
and  understanding.  Baptist  Society  in  Wilton  v.  Town  of  Wilton,  1822, 
2  N.  H.  508;  Richardson,  C.  J.,  in  Bristol^.  Neio  Chester,  1826,  3  N.  H. 
524,  531;  Rice  v.  Wadsroorth,  1853,  27  N.  H.  104;  and  see  Doe,  J.,  in 
Hale  V.  Everett,  1868,  53  N.  H.  9,  147-149. 

The  "  Toleration  Act"  of  1819  did  not  deprive  towns  of  the  power  to 
appropriate  such  lands  for  the  benefit  of  religious  societies  within  their 
limits.  Condia  v.  French,  1835,  8  N.  H.  133.  But  the  towns,  being  held 
to  be  absolute  owners,  are  under  no  legal  obligation  to  do  so.  They  may 
appropriate  the  proceeds  of  such  lands  for  the  purchase  of  a  poor  farm. 
Rice  V.  Wadsworth,  1853,  27  N.  H.  104. 

For  the  effect  of  a  division  of  the  town  upon  the  ownership  of  such 
lands,  see  Union  Baptist  Society  v.  Town  of  Candia,  1819,  2  N.  H.  20. 
See,  generally,  as  to  the  effect  of  a  division  of  a  town,  upon  the  ownership 
of  town  property,  Bristol  v.  New  Chester,  uhi  sup  ;  Troy  v.  Haskell,  1856, 
33  N.  H.  533;  Greenville  v.  Mason,  1873,  53  N.  H.  515;  Tiltonv.  San- 
bornion,  55  N.  H.  610,  n. 

For  the  construction  of  grants  (other  than  those  contained  in  the  origi- 
nal charter,  or  grant,  of  a  township)  to  municipalities  for  religious,  edu- 
cational, patriotic,  or  other  public  purposes,  see  Newmarket  v.  Smart, 
1863,  45  N.  H.  87;  Browny.  Concord,  1856,  33  N.  H.  285;  Troy  v.  Haskell, 
1856,  33  N.  H.  533;  Chopin  v.  School  District,  1857,  35  N.  H.  445;  The 
Dublin  Case,  1859,  38  N.  H.  459;  s  c.  41  N.  H.  91;  Sargent  v.  Cornish, 
1873,  54  N.  H.  18;  Orford  Union  Congregational  Society  v.  West  Congre- 
gational Society   of  Orford,    1875,   55  N.   H.    463;    Congregational  Society 


APRIL   TERM,   1807.  155 


Kidder  v.  French. 


Joseph  Kidder  v.  Theo.  French,  Z.  Lovewell,  and 
Jer.  Hunt. 

The  estate  of  an  ordained  minister  of  tlie  gospel,  not  settled  over  a  corporate 
society,  is  not  exempt  from  taxation. 

This  was  an  action  of  trespass  for  an  illegal  assessment  of 
$8.51  on  the  real  and  personal  estate  of  the  plaintiff  in  Dun- 
stable, in  the  year  1804. 

The  plaintiff  admits  that  the  defendants  were  the  assessors, 
and  that  the  assessment  was  legal  if  his  estate  was  not  by  law 
exempt  from  taxation.  And,  as  to  this,  the  parties  agreed  on 
a  case,  in  substance  as  follows :  — 

That  the  plaintiff  was  ordained,  March  18,  1767,  a  minister 
of  the  gospel  over  the  church  and  town  of  Dunstable,  and 
continued  regularly  to  officiate  in  that  office  till  June  15, 
1796,  when,  by  a  mutual  council,  the  special  pastoral  relation- 
ship between  the  plaintiff  and  the  church  and  town  of  Dun- 
stable was  dissolved,  (a)  The  council  recommended  to  the 
church  of  Dunstable  that  Mr.  Kidder,  agreeably  to  their 
request,  should  continue  to  administer  the  ordinances  of  bap- 
tism and  the  Lord's  Supper ;  which  he  has  ever  since  done. 
The  council  also  recommended  Mr.  Kidder  to  all  Christian 
people  who  might  think  proper  to  employ  him,  and,  in  their 
result,  stated  that  they  did  not  consider  Mr.  Kidder  as  divested 

(a)  The  written  statement,  as  drawn  up  by  the  counsel,  contains  many 
things  which  do  not  concern  the  merits,  but  does  not  state  in  positive 
terms  this  material  fact. 


§•  Church  in  Newington  v.  Newington,  1873,  53  N.  H.  595;  Greenville  v. 
Mason,  1873,  53  N.  H.  515;  Foster  v.  Lane,  1855,  30  N.  H.  305;  Wiggin 
V.  Berry,  1850,  22  N.  H.  114;  Second  v.  First  Congregational  Society  in 
Hopkinton,  1843,  14  N.  H.  315. 

That  the  action  of  the  committee  was  not  binding  until  accepted  by 
the  town,  see  Monadnock  R.  R.  v.  Peterborough,  1870,  49  N.  H.  281. 


156  HILLSBOROUGH. 


Kidder  v.  French. 


of  his  ministerial  character  by  the  dissolution  of  his  special 
relation  to  the  church  and  town  of  Dunstable ;  and  Mr.  Kid- 
der has  ever  since  been  received  and  treated  as  an  ordained 
minister  by  the  members  of  the  council  and  other  ministers 
and  regular  Congregational  churches,  and  received  to  admin- 
ister the  special  ordinances  of  the  gospel.  The  real  estate 
taxed  was  acquired  and  possessed  by  Mr.  Kidder  before  the 
dissolution  of  his  connection  with  the  church  and  town  of 
Dunstable. 

If  the  Court  should  be  of  opinion  that  the  assessment  was 
legal,  the  plaintiff  to  become  nonsuit ;  otherwise  the  defend- 
ants to  be  defaulted. 

The  opinion  of  the  Court  was  now  delivered  by  Smith,  C.  J. 

The  question  we  are  now  called  to  decide  is,  whether,  on  the 
facts  stated,  Mr.  Kidder's  estate  was  exempt  from  taxation. 

The  act  of  Feb.  8,  1791  (ed.  1805,  214),  makes  it  the  duty 
of  the  selectmen  "  to  assess  the  polls  and  estate  within  the 
town,  according  to  the  rules  and  directions  of  the  law,  their 
just  and  equal  proportion  of  all  sums  of  money  authorized  and 
required  to  be  raised."  This  is  equivalent  to  saying  that  all 
the  polls  and  all  the  ratable  estate  shall  be  taxed.  The  omis- 
sion to  tax  what  is  taxable  is  as  illegal  as  the  assessing  of 
what  is  exempt  from  taxation. 

The  act  of  Dec.  19,  1803  (ed,  1805,  218),  establishing  the 
rates  at  which  polls  and  ratable  estates  shall  be  valued,  ex- 
empts the  polls  of  ordained  ministers,  and  certain  others. 
Under  this  clause,  I  suppose,  it  was  that  Mr.  Kidder's  poll 
was  not  taxed  in  the  assessment  complained  of.  There  is  no 
exception  as  to  ratable  estate  in  respect  of  the  owner.  All 
real  estate  situate  in  the  town,  and  all  personal  estate  of  the 
description  mentioned  in  the  act,  let  who  may  be  the  owner, 
is  subject  to  taxation.  If  Mr.  Kidder's  estate  is  exempt,  it 
must  be  so  because,  by  the  usage  of  the  State  from  the  earliest 
times  of  which  we  have  any  knowledge,  i.  e.  by  the  common 
law  of  the  State,  the  estates  of  persons  of  his  character  and 
description  have  been  exempt;  and  so  the  expressions  in  the 
statute  —  that  all  the  estate  within  the  town  is  to  be  taxed  — 


APRIL   TERM,  1807.  157 

Kidder  v.  French. 

must  be  understood  to  mean  only  all  liable,  all  not  exempt 
from  taxation. 

It  is  certainly  going  a  great  way  in  construing  this  law,  to 
admit  of  any  exceptions  when  the  statute  contains  none,  and 
especially  to  exempt  the  estate  of  settled  ordained  ministers 
of  the  gospel,  when  the  statute  has  expressly  exempted  the 
poll,  (a) 

It  has  been  decided  in  this  State,  in  the  case  of  Kelley  v. 
Bean  and  others.  Selectmen  of  Warner,  Hillsborough,  May 
Term,  1798,  "that  a  minister  of  the  church  and  congregation 
in  a  town  "  is  not  liable  to  be  taxed.  (J)     We  are  not  favored 

(a)  But  we  are  not  to  suppose,  from  the  express  exemption  of  the  poll, 
that  ministers'  polls  were  taxed  before.  They  certainly  were  not.  In  this 
act,  the  polls  of  paupers  were  exempted.  Is  it  supposable  that  they  ever 
■were  taxed?  It  was  thought  necessary  to  mention  ministers'  polls,  be- 
cause, as  certain  polls  were  expressly  exempted,  an  argument  might  have 
been  drawn,  from  an  omission  of  ministers,  that  it  was  the  intention  to  tax 
their  polls,  though  their  estates  had  always  been  exempted.  It  is  certainly 
not  true  that  all  lands  in  the  town  were  ever  taxed,  or  now  are.  Lands 
owned  by  the  town  are  not  taxed,  and  yet  are  not  exempted  by  any 
statute  ;  the  parsonage,  school-lot,  &c.,  are  of  this  description.  All  build- 
ings are  to  be  taxed;  but  was  it  ever  heard  of  to  tax  a  meeting-house, 
school-house?  Were  the  public  buildings  in  Exeter,  Concord,  Hanover, 
&c.,  ever  taxed?  There  are,  and  always  have  been,  exemptions,  where  the 
statute  has  not  expressly  made  any.  They  depend  on  invariable  usage, 
growing  out  of  the  reason  and  nature  of  the  thing.  They  are  more 
ancient  than  our  statutes  (1770),  and  are  not  repealed  except  by  express 
clauses  for  the  purpose,  or  by  provisions  necessarily  and  manifestly  re- 
pugnant.* 

(6)  It  does  not  appear  whether  the  tax  complained  of  in  this  case  was 
for  the  poll,  estate,  or  both.     Exception  of  the  poll  seems  first  to  have 

*  "  Some  things  are  always  presumptively  exempted  from  the  operation  of  general  tax 
laws,  because  it  is  reasonnble  to  suppose  they  were  not  within  the  intent  of  tiie  legislature 
in  adopting  them.  A  State  may,  if  the  legislature  see  fit,  tax  all  the  property  owned  by 
its  municipal  divisions ;  but  to  do  so  would  render  necessary  new  taxes  to  meet  the  de- 
mand of  this  tax,  and  thus  the  public  would  be  taxing  itself  in  order  to  raise  money  to 
pay  over  to  itself,  and  no  one  would  be  benefited  but  the  officers  employed.  It  is  always 
to  be  assumed  that  the  general  language  of  statutes  is  made  use  of  with  reference  to  tax- 
able subjects,  and  the  property  of  municipalities  is  not  in  any  proper  sense  taxable.  It 
is,  therefore,  by  clear  implication,  excluded.  It  is  not,  like  government  agencies,  excluded 
from  the  power  of  tax  laws,  but  it  is  beyond  the  grasp  of  their  intent." 

Cooley  on  Taxation,  130,  131. 

See  Gen.  Laws,  c.  53,  §  2.  Brewster  v.  Hough,  1839,  10  N.  H.  138;  Warden  v. 
Manchester,  1876,  56  N.  H.  508. 


158  HILLSBOROUGH. 

Kidder  i;.  French. 

with  the  grounds  or  reasons  of  that  decision.  And,  if  we 
were,  it  does  not  come  up  to  the  present  case.  If  ministers  of 
the  gospel  of  any  description  are  exempt  from  taxation,  it  still 
remains  to  be  determined  what  is  the  particular  character  and 
description  of  persons  entitled  to  exemption,  what  is  the  ex- 
tent of  the  privilege. 

Minister^  or  minister  of  the  gospel,  is  a  comprehensive  term, 
and  of  uncertain  signification.  In  examining  the  statute 
book  we  find  various  modes  of  expression  used  respecting 
ministers. 

been  introduced  in  the  act  of  Dec.  2G,  1798,  ed.  1797,  519,  ed.  1815,  548. 
This  act  omits  president,  professors,  and  tutors  of  college.  The  acts  of 
Feb.  8,  1791,  ed.  1805,  217,  Feb.  22,  1794,  ed.  1797,  202,  203,  contain  no 
exceptions. 

Acts  establishing  method  of  making  taxes,  rates  of  polls  and  estate 
in  the  valuation,  &c.  :  — 

1.  An  act  to  establish  an  equitable  method  of  making  rates  and  taxes 
&c.  Passed  April  12,  1770.  Acts,  June  Session,  1815,  appendix  9. 
Preamble  :  No  rule  established  by  law  to  compel  persons  to  pay  in  pro- 
portion to  their  income.  The  matter  has  been  left  to  the  arbitrary  deter- 
mination of  selectmen,  &c.  In  future,  all  taxes  to  be  made  and  assessed  in 
proportion  to  the  amount  of  each  person's  polls,  ratable  estate,  &c.  All 
male  polls,  &c. 

(This  act  implies  that  ministerial  taxes  are  to  be  made  by  same  in- 
voice.) 

2.  Act  passed  Jan.  30,  1773  (not  Jan.  2,  1772),  11. 

3.  Act  July  2,  1776,  ed.  1815,  appendix,  511. 

4.  Act  June  12,  1784,  ed.  1815,  appendix,  525. 

5.  Act  Feb.  7,  1789,  ed.  1815,  appendix,  533. 

6.  Act  Feb.  8,  1791,  257.  Selectmen  to  assess  the  polls  and  estates 
■within  the  town,  according  to  the  rules  and  directions  of  the  law,  their 
just  and  equal  proportion  of  all  sums  voted  to  be  raised  at  any  legal  meet- 
ing of  the  inhabitants,  &c.     Sect.  9  establishes  the  rates,  &c. 

7.  Act  Feb.  22,  1794,  ed.  1815,  appendix,  544. 

8.  Act  Dec.  26,  1798,  ed.  1815,  appendix,  548.  Taxes  to  be  assessed 
on  the  polls  and  ratable  estates  in  the  manner  following,  viz. :  Each  poll 
from  18  to  70  (excepting  those  from  18  to  21  enrolled  in  the  militia,  or- 
dained ministers,  students  of  colleges,  paupers,  and  idiots)  to  be  valued,  &c. 

9.  Act  Dec.  24,  1803,  550.  Same  exception,  with  addition  of  president, 
professors,  and  tutors  of  colleges. 

10.  Act  of  Dec.  16,  1812,  263.     Same  exception  as  last. 

All,  with  sundry  additional  acts,  repealed,  except  act  of  Dec.  16, 
1812. 


APRIL   TERM,  1807.  159 

Kidder  v.  French. 

In  the  Constitution,  Art.  VI.,  they  are  spoken  of  as  public 
teachers  of  piety,  religion,  and  morality.^  In  the  statutes 
they  are  sometimes  called  ministers  of  the  gospel ;  under  that 
name  they  are  excused  from  militia  duty  (ed.  1805,  252),  en- 
joined to  read  the  Sabbath  act  (p.  294),  authorized  to  certify 
the  qualifications  of  schoolmasters  (p.  296). 

Sometimes  they  are  called  ordained  ministers  of  the  gospel, 
a  term  less  comprehensive  in  its  signification  ;  such,  in  the 
county  where  settled  or  permanently  residing,  are  authorized 
to  solemnize  marriages  (ed.  1805,  296).^  In  the  Province 
Law  (p.  51),  settled  ministers  of  the  gospel  are  authorized  to 
join  persons  in  marriage.  In  the  Province  Law  for  mainten- 
ance of  the  ministry  (p.  55),  something  like  a  definition  of  a 
settled  minister  is  given.  He  is  one  settled,  i.  e.  chosen,  by 
the  freeholders  of  the  town,  convened  in  public  town  meeting, 
as  a  minister  for  the  supply  of  the  town  at  a  certain  annual 
salary.     He  is  called  the  settled  minister  of  the  town. 

The  language  used  by  writers  is  to  the  same  effect. 

There  seem  to  be  three  descriptions  of  persons  in  the  minis- 
try. 1st.  Those  who  officiate  in  public  teaching,  &c.,  who  are 
neither  ordained  nor  settled.  2d.  Those  who  are  or  have 
been  ordained,  but  not  connected  with  any  particular  church 
or  society.  Wise,  207.  And  3d.  Those  who  are  ordained  and 
settled  in  a  particular  town  or  parish,  connected  with  a  par- 
ticular church  and  congregation. 

Those  who  are  at  all  acquainted  with  the  temper,  views, 
and  habits  of  the  first  settlers  of  New  England  will  not  be 
surprised  to  learn  that  the  clergy  obtained,  in  early  times,  ex- 
emption from  the  burden  of  taxes. 

It  was  a  doctrine  much  inculcated  at  that  day,  and  forms 

1  A  person  regularly  engaged  and  officiating  as  a  reader  in  an  Episcopal 
society,  without  ordination,  is  "a  public  teacher  of  piety,  religion,  and 
morality,"  within  the  meaning  of  the  Massachusetts  Constitution.  Sanger 
V.  Inluibitants  of  Third  Par'ish  in  Roxbari/,  1811,  8  Mass.  2(55. 

2  For  the  construction  of  this  statute,  and  an  elaborate  discussion  of 
the  meaning  of  the  term  "  ordained  minister,"  see  Londonderry  v .  Chester, 
1820,  2  N.  H.  268.  See  also  Slate  v.  Kean,  1839,  10  N.  H.  3-47;  Slate  v. 
Winkley,  1843,  14  N.  H.  480. 


160  HILLSBOROUGH. 


Kidder  v.  Fre"nch. 


an  article  in  the  Platform  of  Discipline,  (a)  "  that  necessary 
and  sufficient  maintenance  is  due  unto  the  ministers  of  the 
word,  from  the  law  of  nature  and  nations,  from  the  law  of 
Moses,  the  rule  of  common  reason,  and,  still  more,  from  the 
law  of  revelation,  which  declares  that  the  laborer  is  worthy  of 
his  hire,  and  requires  that  he  who  is  taught  in  the  word 
should  communicate  to  his  teacher  in  all  good  things,  and 
that  they  which  preach  the  gospel  should  live  by  the  gospel." 
If  the  reasons  for  encouraging  and  supporting  the  clergy  had 
been  less  weighty,  and  the  authorities  less  decisive,  still  this 
privilege  would  in  all  probability  have  been  granted.  We 
know  that  the  clergy  of  that  day  had  great  influence  in  all 
civil  affairs.  Nothing  of  importance  was  undertaken  without 
their  advice.  They  assisted  in  framing  particular  laws,  and 
especially  in  digesting  a  civil  code  for  the  government  and 
regulation  of  the  colony.  1  Hutchinson,  251 ;  1  Holmes, 
American  Annals,  366  ;  Winthrop's  Journal,  197,  302.  The 
legislative  and  the  judicial  departments  resorted  to  the  clergy 
for  advice  in  all  weighty  and  difficult  affairs.  Winthrop's 
Journal,  236.  Indeed,  in  those  days,  the  civil  and  ecclesiasti- 
cal state  were  so  blended  that  the  one  could  not  exist  without 
the  other.  Town  corporations  were  composed,  and  must  be 
composed,  wholly  of  church  members.  A  vote  of  the  town 
and  a  vote  of  the  church  was  the  same  thing.  The  minister 
was  at  the  head  of  the  church,  and  consequently  of  the  town. 
All  political  power  was  lodged  in,  and  in  the  first  instance 
exercised  by,  these  small  bodies.  It  is  not  extravagant,  there- 
fore, to  say  that  the  ministers  could  make  and  unmake  magis- 
trates at  their  pleasure.  The  ministers  spoken  of  were  those 
connected  with  particular   churches  and  towns.  (6.)     It  was 

(a)  Cambridge  Platform,  Wise,  211. 

(6)  The  Platform  (Wise,  208)  considers  officers  as  existing  only  in 
connection  with  a  particular  church.  He  that  is  clearly  loosed  from  his 
office  relation  to  the  church  whereof  he  was  a  minister  cannot  be  looked 
upon  aa  an  officer,  unless  again  orderly  called  unto  office,  and  he  may  be 
again  ordained.  ("  Mr.  N.  W.  had  cast  off  his  pastor's  place  at  I.,  and  was 
now  no  minister,  by  the  received  determination  of  our  churches."  Gov. 
Winthrop,  vol.  ii.  Savage's  edition,  35.)  It  would  seem,  however,  in  early 
times,  to  have  been  allowable  to  ordain  a  minister  to  the  church  universal 


APRIL   TERM,   1807.  161 


Kidder  v.  French. 


necessary  that  those  men  who  were  devoted  to  the  best  inter- 
ests of  society  should  have  a  decent  and  honorable  support. 
They  richly  deserved  it.     At  that  day  the  people  were  not 
reluctant  in  bestowing  it.     The  influence  of  the  clergy  could 
command  it.     For  some  time  it  was  unnecessary  to  raise  taxes 
for  this  object.     1  Hutchinson,  376,  &c. ;  Winthrop's  Journal, 
176,  190.     Some  scrupulous  persons,  clergymen   and  others, 
entertained  doubts  about  the  lawfulness  of  maintenance  by  a 
salary.     Taxes  were  considered  as  but  another  name  for  tithes, 
and  they  had  not  yet  lost  their  aversion  to  tithes.     Mass.  Hist. 
Coll.  I.  178  (reprinted  1806)  ;  Winthrop's  Journal,  42,  54,  58, 
60,   217,  269;    Hutchinson,  Coll.  Papers,  291,   &c.     At  this 
time,  when  the  clergy  were  supported  by  voluntary  contribu- 
tions from  the  people   of  their   charge,  it  would  have  been 
absurd   to  tax  the   minister.     This  would  have  been  taking 
from  him  by  compulsion  what  was  freely  given.     And  when 
these  scruples  wore  off  (they  were  not  calculated  to  be  of  long 
duration),  and  the  law  made  provision  for  the  support  of  the 
clergy,  —  making  it  the  duty  of  the  town  to  raise  money,  and 
empowering  the  magistrates,  in  case  of  neglect  of  towns,  (a) 
to  levy  money  by  tax  for  the  honorable  support  of  the  teacher, 
—  it  would  have  been    absurd    to  tax  the  minister  himself. 
This  would  have  been  taking  from  him  with  one  hand  what 
was  bestowed  with  the  other.     And  though  taxing  the  minis- 
ter of  the  town  to  other  taxes  —  province  and  county,  for  exam- 
ple—  is  not  quite  so  absurd  as  assessing  him  to  the  minister's 
tax,  yet,  in  the  end,  it  comes  nearly  to  the  same  thing.     The 

at  the  same  time  he  was  ordained  over  a  particular  church  and  society. 
This  seems  to  have  been  the  idea  of  the  council  who  dissolved  the  relation 
between  Mr.  Kidder  and  the  church  and  town  of  Dunstable.  They  con- 
sidered him  as  still  retaining  the  character  and  office  of  an  ordained  min- 
ister, yet  it  is  usual  at  this  day  to  resettle  a  minister  by  installation,  which 
is  a  sort  of  second  ordination.  It  is  believed  that  there  were  in  early 
times,  in  New  England,  few,  if  any,  ordained  ministers  unconnected  with 
particular  churches  and  towns. 

(a)  Every  county  court  had  the  power  to  make  sufficient  provision  for 
the  maintenance  of  the  ministry,  and  to  rectify  any  defect,  on  complaint  of 
any  such,  for  want  of  means  whereby  comfortable  to  subsist.  1  Holmes, 
American  Annals,  354. 

11 


162  HILLSBOROUGH. 


Kidder  v.  French. 


towns  were  bound  to  give  their  ministers  a  maintenance,  an 
honorable  support.  What  was  taken  from  them  to  pay  other 
taxes  must  be  made  up  by  increasing  the  minister's  tax  ;  so 
that  in  the  end  it  would  come  precisely  to  the  same  thing. 
Hence,  no  doubt,  it  became  the  usage  for  towns  to  omit  taxing 
their  ministers,  and  this  exemption  would  necessarily  be  con- 
sidered as  a  part  of  t4ie  minister's  compensation  in  the  contract 
of  settlement. 

What  has  been  mentioned,  I  have  no  doubt,  gave  rise  to  the 
custom  or  usage  to  exempt  the  minister  of  the  town  from  tax- 
ation. It  will  enable  us,  also,  to  judge  of  the  extent  of  the 
usage,  in  the  absence  of  particular  proof. 

Governor  Hutchinson,  who  knew  the  laws  and  customs 
of  Massachusetts  better  than  any  man  in  his  day,  and  perhaps 
before  or  since,  tells  us  (1  Hutchinson,  395)  that  "  the 
clergy  at  all  times  have  been  exempt  from  all  taxes  for  their 
persons,  or  estates  under  their  own  improvement ;  not  merely 
because  this  was  agreeable  to  the  Levitical  law,  but  because 
they  depended  on  the  people,  from  year  to  year,  for  their  sup- 
port, and  whatever  was  added  to  their  annual  expense  by  a 
tax,  so  much  must  have  been  added  by  the  people  to  enable 
their  minister  to  pay  it."  The  word  clergy  is  broad  enough, 
in  its  signification,  to  comprehend  Mr.  Kidder ;  he  is  a  clergy- 
man, still  one  of  the  clergy.  But  the  reason  assigned  for  the 
exemption  leads  to  a  more  confined  interpretation  of  the  word  ; 
namely,  settled  ministers.  The  clergy  not  taxable  are  those 
whom  the  people,  i.  e.  a  particular  town  or  society,  are  bound 
to  support,  and  who  on  their  part  are  bound  to  minister  in 
holy  things.  But  where  a  clergyman  does  not  depend  on  the 
people  for  support;  where  he  is  not  the  minister  of  any  particular 
town  or  society,  bound  to  preach  to  them,  and  they  l)ound  to 
support  him,  —  the  reason  for  exemption  fails.  If  he  is  at 
liberty  to  preach  or  not  to  preach,  the  people  are  at  liberty  to 
tax  or  not  to  tax. 

From  this  passage  of  Governor  Hutchinson,  we  perceive, 
also,  that  there  was  another  limitation  in  this  exemption  from 
paying  taxes ;  namely,  it  only  applies  to  estates  under  the  im- 
provement of  the  minister.     Generally  this  will  be   the  same 


APRIL   TERM,  1807.  163 

Kidder  v.  French. 

thing  as  saying  that  he  shall  not  be  taxed  for  estate  in  the 
town  in  which  he  is  settled.  If  the  estate  lies  in  another 
town,  it  is  taxable  ;  because  the  people  there  are  supposed  to 
have  no  equivalent  for  the  exemption.  The  modern  doctrine 
in  Massachusetts  is  to  the  i^ame  effect.  It  now  depends  on 
statute,  which,  however,  it  is  apprehended,  has  introduced  no 
change  in  the  law.  All  settled  ministers,  and  their  estates  in 
the  town  where  they  are  settled,  or  under  their  own  actual 
improvement,  are  exempted  from  taxation,  (a) 

Mass.  Hist.  Coll.  V.  48.  An  action  was  brought  in  the 
county  of  Hampshire,  Massachusetts,  in  1797,  where  the 
plaintiff  was  a  Baptist  minister,  living  in  Buckland,  and 
preaching  in  a  meeting-house  in  Chester.  His  hearers  and 
church  were  of  any  part  of  the  country  who  chose  to  associate 
with  him.  The  question  was  whether  he  was  a  settled  minister 
(the  action  was  trespass  against  the  assessors  for  an  illegal  assess- 
ment). The  Court  were  of  opinion  that  he  was  not  a  settled 
minister  within  the  meaning  of  the  statute,  because  he  was  not 
the  settled  minister  of  a  town,  parish,  or  religious  corporation 
obliged  to  maintain  a  public  teacher  of  religion,  &c.  ;  a  man's 
being  ordained  over  a  voluntary  association,  formed  by  no  act  of 
government  and  bound  by  no  law,  is  not  [does  not  constitute 
him]  a  settled  minister  within  the  meaning  of  the  act.  The  de- 
nomination of  the  plaintiff  made  no  difference  in  the  case.  (5) 

In  Connecticut,  we  are  told  (1  Trumbull,  421,  451)  that, 
in  1698,  the  assembly  passed  an  act,  exempting  the  clergy  from 
taxation.  But  this,  it  seems,  was  construed  only  to  release 
their  persons  from  taxes  ;  for,  in  1706,  it  was  found  necessary 
to  give  them  further  encouragement,  and  it  was  accordingly 
provided  "  that  all  ministers  of  the  gospel  that  now  are,  or 
hereafter  shall  be,  settled  in  this  colony,  during  the  continu- 
ance of  their  public  service  in  the  gospel  ministry,  shall  have 

(a)  Qaaire.  Was  it  not  decided  in  Mass.  Supreme  Court,  Dana  v. 
Groion,  1777  or  1778,  that  a  minister  disconnected  with  the  church  and 
town,  though  he  still  continued  to  preach,  was  liable  to  be  taxed  to  the 
war,  and  to  furnish  soldiers,  &c.  ?  lie  relied  on  his  ministerial  character 
for  exemption. 

(6)   See  Washburn  v.  Fourth  Parish  in  West  Springjield^  1  Mass.  32. 


164  HILLSBOROUGH. 


Kidder  v.  French. 


their  estates  lying'  in  the  same  town  where  they  dwell,  and  all 
the  polls  belonging  to  their  several  families,  exempted  from 
the  payment  of  rates."  And  it  is  now  held,  in  that  State,  that 
settled  ministers  of  the  Christian  religion,  their  polls  and 
estates  lying  in  the  society  or  town  in  which  th«y  dwell,  are 
exempted  from  taxation  (Wolcott  on  Direct  Tax.,  26.  See 
2  State  Papers,  folio,  green,  26). 

Though  we  have  no  statute  provision,  either  before  or  since 
the  Revolution,  on  the  subject  of  ministers'  estates,  yet  we 
doubtless  brought  with  us  from  Massachusetts,  in  the  separa- 
tion, in  1679  or  1680,  the  customs  and  usages  of  that  State. 
I  hope  we  have  not  diminished  the  stock  of  respect  and 
attachment  to  the  clerical  profession  with  which  we  set  up  for 
ourselves,  though  I  fear  we  have  added  little  to  it.  It  is  fair 
to  presume  that  we  adopted  the  prevailing  sentiments  and  the 
general  usages  of  New  England.  From  what  we  learn  of  that 
usage,  and  from  the  decisions  on  the  subject,  we  are  justified 
in  believing  that  a  settled  minister,  one  bound  to  discharge 
the  pastoral  functions  to  a  society  bound  to  support  him  in 
return,  is  alone  entitled  to  claim  this  privilege  of  exemption 
from  the  burden  of  taxes.  The  public  are  supposed  to  derive 
an  advantage  from  his  useful  labors.  But  where  a  person  is 
at  liberty  to  preach  or  not,  the  public  have  nothing  as  a  con- 
sideration for  the  privilege. 

Till  1796,  Mr.  Kidder,  being  the  minister  of  Dunstable,  was 
entitled  to  receive  a  salary  from  the  town.  To  tax  his  estate 
towards  that  salary  would  have  been  absurd.  The  town  was 
bound  to  pay  it  without  defalcation  ;  and,  as  a  further  encour- 
agement for  his  services  to  the  State,  he  was  entitled  to  ex- 
emption from  all  taxes.  But,  since  that  period,  neither  the 
town  of  Dunstable  nor  the  public  have  any  further  claims  on 
Mr.  Kidder.  He  has,  therefore,  no  claim  on  them.  He  may 
labor  in  word  and  doctrine  just  as  he  pleases,  and  when  and 
where  he  pleases.  He  may  preach  only  once  a  year  .or  every 
day  in  the  year,  just  as  he  pleases  ;  or  he  may  rest  from  his 
ministerial  labors  altogether.  He  may  follow  agriculture, 
commerce,  or  the  profession  of  the  law  ;  or  he  may  mix  these, 
as  some  have  done,  with  the  ministerial  functions.     If  he  is  to 


APRIL   TERM,  1807.  165 

Kidder  ?•.  French. 

be  exempt  because  he  is  a  minister,  and  preaches,  liow  often 
must  he  preach  to  work  out  his  taxes?  Will  one  Sunday  in 
the  year  answer  the  purpose  ?  We  must  draw  the  line  some- 
where. If  any  preachers  are  exempt  except  settled  ministers, 
why  should  not  all  who  go  about  doing  good  in  this  way  be 
exempt  ?  A  Methodist  itinerant  preacher,  or  a  Baptist,  have 
the  same  claims  in  law  as  a  Congregational  preacher.  Shall 
it  be  in  the  power  of  a  presbytery  at  Philadelphia  or  in  Scot- 
land, or  a  Methodist  bishop  who  made  himself  such,  by  ordain- 
ing a  man  to  the  church  universal,  as  the  practice  is,  to 
exempt  that  person's  property  from  paying  taxes?  This 
would  be  enabling  such  men,  or  l)odies  of  them,  to  confer 
civil  privileges.  The  venerable  council  who  ordained  Mr. 
Kidder,  or  that  which  loosed  him  and  declared  that  he  was 
still  an  ordained  minister,  are  of  no  greater  consideration  in 
our  law  than  a  Methodist  bishop  or  Baptist  association.  I 
would  not  be  understood  to  speak  slightly  of  councils  or  of 
denominations.  But  I  speak  of  them  as  they  are  viewed  by 
the  equal  eye  of  the  law,  —  as.  all  upon  a  level. 

Mr.  Kidder  having  been  once  a  settled  minister,  and  his 
estate  acquired  while  he  was  such,  makes  no  difference  in  the 
case.  While  he  was  a  settled  minister,  he  had  the  privilege. 
When  he  ceased  to  be  such,  he  became,  in  the  eye  of  the  law, 
weak,  and  as  other  men.  It  is  not  pretended  in  this  country, 
generally,  that  the  clerical  character  is  indelible,  —  once  a  clergy- 
man and  always  a  clergyman  ;  much  less  that  once  a  settled 
minister  and  always  such.  The  clerical  character  with  us  is 
easily  put  on,  and  it  is  as  easily  put  off.  Even  ordination  is 
easily  obtained  among  the  many  different  sects  into  which  our 
country  is  divided,  and  it  may  be  difficult,  in  some  cases,  to 
determine  who  has  a  right  to  call  himself  an  ordained  minister 
of  the  gospel.  But  it  is  not  equally  difficult  to  determine  who 
is  the  settled  minister  of  a  corporate  body,  (a)  Here,  then, 
the  line  must  be  drawn,  till  the  legislature  is  pleased  to  draw 
another.     When  they  do,  I  shall  cheerfullv  acquiesce.     If  it 

(a)  A  settled  minister  is  one  inducted ;  settlement,  among  Presbyterians 
and  Congregationalists,  is  induction  among  Episcopalians.  2  Boswell's 
Life  of  Johnson,  104. 


16G  HILLSBOROUGH. 


Kidder  v.  French. 


is  thought  proper  that  every  man  who  has  once  been  ordained, 
and  who  has  kept  liis  garments  pure  and  unspotted,  as  Mr. 
Kidder  lias  done,  should  have  this  privilege  conferred  upon 
him,  I  shall  be  content.  I  am  happy  to  find  that  the  testi- 
monials in  favor  of  Mr.  Kidder's  chaiacter  and  services  are 
extremely  favorable.  But  they  cannot  affect  the  merits  of  the 
question  before  us. 

The  plaintiff  must  become  nonsuit,  which  was  entered  accord- 
ingly, (a) 

WiNGATE,  J.,  dissented  from  this  decision. 

[It  was  subsequently  decided  that  the  estate  of  a  settled 
minister  is  exempt  from  taxation.  The  following  is  a  con- 
densed report  of  the  case,  so  far  as  relates  to  this  point.] 

Humphrey  Moore  v.  Benjamin  Poole,  Hillsborough,  December 
Term,  1815,  was  an  action  on  the  case,  against  an  assistant 
assessor  of  the  United  States  Direct  Tax,  for  enumerating,  in 
the  list  of  taxable  property,  the  real  estate  of  a  settled  minister, 
whereby,  and  by  reason  of  said  enumeration,  the  principal 
assessor  proceeded  to  assess  a  tax,  which  was  afterwards 
collected  by  distraint.  The  declaration  averred,  among  other 
things,  that  the  plaintiff  was,  at  the  time  of  said  enumeration, 
"  and  long  before,  and  ever  since  hath  been,  and  now  is,  a 
regularly  ordained  and  settled  minister  of  the  gospel  in  the 
said  town  of  Milford,^  and,  as  such,  his  houses,  lands,  buildings, 

(«)   See  Hutchinson,  Coll.  Papers,  496  (Randolph). 

"Magistrates,  and  ministers,  and  church  elders  pay  no  poll-money,  or 
other  taxes,  upon  lands  or  personal  estates."     See  also  Id.  532. 

Act  N.  II.  March  10,  1(59§  (files),  for  raising  money  for  support  of  gov- 
ernment, &c.  (passed  assembly;  quczre,  council,  &c.),  enacted,  &c.,  that  a 
rate  of  £600  be  forthwith  made  on  all  persons  and  estates,  real  and  per- 
sonal, throughout  the  province,  without  exception  of  any  persons  but 
ministers,  according  as  it  is  hereafter  proportioned  to  each  town,  &c.* 

1  The  plaintiff  was  the  minister  of  the  town  of  Milford  at  the  time  in 
question.  At  a  town-meeting  held  April  28,  1802,  the  town  voted  to 
unite  with  the  church,  and  call  Rev.  H.  Moore  to  be  the  minister  of  the 
town.  It  was  voted  "  to  give  him  a  settlement  of  S600,  a  salary  of  $100 
per  annum,  and  SlOO  a  year  when  he  was  too  old  to  preach." 

*  President  and  Council,  ministers  and  elders  of  churclies,  exempted  in  Province 
Laws  of  IG^-     1  Provincial  Papers,  399. 


APRIL   TERM,  1807.  167 

Kidder  v.  French. 

and  real  estate,  in  tlie  said  town  of  Milford,  for  and  during 
the  whole  of  said  time,  have  been  and  are,  by  the  laws  of  the 
State  of  New  Hampshire,  exempted  from  taxation,  and  he,  the 
said  plaintiff,  is,  and  hath  been  during  his  said  ministry,  a  per- 
son not  liable  to  be  taxed  ;  "  and  that  the  defendant  well  knew 
these  facts. 

A  demurrer  to  the  declaration  was  overruled,  and  judgment 
was  rendered  for  the  plaintiff. 

Smith,  C.  J.,  in  delivering  the  opinion,  discussed  the  mean- 
ing of  the  exemption  in  the  United  States  Tax  Law,  of  "  lands 
permanently  or  specially  exempted  from  taxation  by  the  laws 
of  the  State  wherein  the  same  may  be  situated;"  and  held 
that  this  includes  (besides  lands  now  specially  exempted  by 
statute)  lands  which  have  always,  or  even  generally  (in 
opposition  to  specially),  been  exempted  from  the  State  land- 
tax,  ^.  e.  not  taxed  ;  whether  the  omission  depend  for  its  basis 
on  statute,  common  law,  or  usage. 

He  then  said — "If  this  be  the  true  construction  of  the 
clause  in  question,  let  us  now  inquire  whether  the  plaintiff's 
lands  are,  by  the  State  law,  permanently  or  specially  exempted 
from  land  tax. 

"  I  consider  the  decision  in  Kidder  v.  French  et  als.^  Hills- 
borough, April  Term,  1807,  as  decisive  to  show  that  Mr. 
Moore's  farms  are  exempted  from  any  tax  made  under  the 
authority  of  the  State,  and  consequently  exempted  from  the 
United  States  land  tax. 

"  It  may  be  said  this  is  not  a  special  exemption,  —  there  is  no 
express  provision  in  the  State  law  for  it ;  and  it  is  not  a 
permanent  exemption,  —  it  depends  for  its  duration  on  Mr. 
Moore's  continuing  the  settled  minister  of  Milford.  It  is  true 
it  does  so  depend,  but  yet  is  as  permanent  in  its  nature  as  any 
exemption  can  be.  All  exemptions  are  in  favor  of  persons  or 
corporations  holding  for  a  certain  use  or  purpose.  The  ex- 
emption is  in  favor  of  persons  and  particular  interests,  religion, 
literature,  manufactures,  &c.  The  exemption  is  made,  not  in 
respect  of  the  lands,  but  the  use  :  and,  in  the  nature  of  things, 


168  CHESHIRE. 


Walton  V.  Henderson. 


can  be  no  more  permanent  than  the  use.  The  exemption  of 
all  lands  owned  and  occupied  by  all  settled  ministers  is  a 
permanent  exemption,  certain  and  definite."  ^ 


CHESHIRE,   MAY   TERM,    1807. 


James  Walton  v.  James  Henderson. 

A  promissory  note  was  made  payable  to  A.,  or  bearer,  "  on  demand,  at  W.,  after 
sixty  days."  The  maker  then  lived  at  VV.  in  Massachusetts,  but,  after  the 
expiration  of  the  sixty  days,  removed  to  New  Hampshire,  leaving  property  in 
the  hands  of  a  resident  of  W.,  to  pay  all  his  notes  that  might  be  presented. 

Held,  that  the  holder  of  the  note,  who  had  no  notice  of  the  deposit  left  in  W., 
need  not  make  a  demand  at  W.,  or  anywhere  else,  before  suing  the  maker. 

This  was  an  action  of  assumpsit  on  a  promissory  note, 
dated  at  Westford,  June  10,  1805,  made  by  defendant  to  one 
J.  Abbot  or  bearer,  for  85,  payable  on  demand  at  Westford, 
after  sixty  days,  for  value  received.  The  declaration  stated 
that  the  defendant  was,  at  Jaifrey,  June  10,  1805,  specially 

1  By  the  statute  of  Dec.  25,  1816,  it  was  enacted,  "That  the  real  and 
personal  estates  of  all  ordained  ministers  of  the  gospel  of  every  denomi- 
nation, within  this  State,  shall  hereafter  be  assessed  and  taxed  in  the  same 
way  and  manner  as  other  estates  are  now,  or  hereafter  may  by  law  be 
taxed;  any  law,  usage,  or  custom  to  the  contrary  notwithstanding.  Pro- 
vided, nevertheless,  that  nothing  in  this  act  shall  be  so  construed  as  to 
affect  any  contract  in  writing  heretofore  made  between  any  town  in  this 
State,  and  the  minister  thereof." 

An  ordained  minister  not  settled  over  any  particular  society  was  not 
exempt  from  taxation  under  the  Massachusetts  statute  of  1811.  Rugijles  v. 
Kimball,  1815,  12  Mass.  837.  See  also,  as  to  what  constituted  a  "  settled  " 
minister,  within  the  meaning  of  the  exempting  statute,  Gridley  v.  Clark, 
1824,  2  Pick.  403. 

In  more  modern  times,  clergymen,  instead  of  enjoying  exemption  from 
taxation,  have  been  subjected,  in  Pennsylvania,  to  an  occupation  tax. 
Miller  v.  Kirkpatrick,  1857,  29  Pa.  St.  226. 


MAY   TERM,  1807.  169 


Walton  i;.  Henderson. 


requested  to  pay  the  plaintiff,  who  was  then  the  bearer,  &c. 
There  was  also  a  count  for  $7,  money  lent. 

This  cause  was  submitted  to  the  Court  on  a  case  stated. 
In  substance,  —  that  the  note  was  made  and  transferred  as 
stated  in  the  declaration  (and  that  the  plaintiff  is  a  bona  fide 
holder  for  a  valuable  consideration)  ;  that  the  defendant,  at 
the  time,  resided  in  Westford,  in  Massachusetts,  and  continued 
to  reside  there  till  December,  1805,  when  he  removed  to 
Jaffrey,  N.  H.,  where  he  has  ever  since  resided ;  that  the 
defendant  issued  this  note,  and  many  others  similar  thereto, 
at  Westford,  which  circulated  as  bank  bills;  that  previous 
to  the  commencement  of  this  suit,  which  was  after  defendant 
removed  to  Jaffrey,  no  demand  was  made  for  payment  of 
defendant  or  any  other  person,  nor  at  any  place  in  Westford  ; 
that  the  defendant  has  had  property  or  money  in  the  liands 
of  a  Mr.  Abbot,  of  Westford,  ever  since  he  left  that  place  ; 
that,  about  the  time  of  his  leaving  Westford,  or  shortly  after, 
he  requested  Abbot  to  discount,  i.  e.  pay  all  his  bills  or  notes 
of  the  tenor  of  that  in  suit  that  might  be  presented  to 
him  ;  that  Abbot  has  always  paid  all  such  bills  presented  to 
him  for  payment,  and  still  has  funds  in  his  hands  for  that 
purpose,  (a) 

Smith,  C.  J.  The  question  is,  whether  the  plaintiff  is 
entitled  to  rjecover.  This  note  is,  in  effect,  payable  after  sixty 
days.  If  the  words  "at  Westford,"  in  the  body  of  the  note, 
had  been  omitted,  it  is  clear  no  demand  would  have  been 
necessary ;  a  suit  might  have  been  commenced  at  any  time 
after  sixty  days  without  demand.  1  Tidd,  387.  Where  the 
contract  is  to  pay  a  collateral  sum  upon  request,  there  the 
request,  being  parcel  of  the  contract,  and,  as  it  were,  a  con- 
dition precedent,  ought  to  be  specially  alleged  with  the  time 
and  place  of  making  it;   but  where  the  contract  is  founded 

(a)  The  case,  as  here  stated,  varies  a  little  from  the  statement  made  and 
signed  by  the  counsel ;  but,  on  this  being  read,  it  was  agreed  to  be  correct, 
and  substituted  in  room  of  the  one  filed. 

(It  was  not  stated  that  holder  had  any  notice  that  Abbot  had  funds  at 
Westford,  &c.) 


170  CHESHIRE. 


Walton  V.  Henderson. 


on  a  precedent  debt  or  duty, — as  in  the  case  of  a  bond, 
note,  etc.,  for  money  lent,  &c.,  —  there  no  special  request 
need  be  alleged  or  proved  ;  the  bringing  of  the  action  is 
sufficient  request,  (a)  Chitty,  133  ;  Evans,  95.  Even  in  the 
case  of  an  accepted  bill,  no  request  is  necessary  to  be  proved 
before  suit  commenced  against  the  acceptor,  because  his 
engagement  to  pay  is  absolute.  Where  the  action  is  against 
the  indorser  of  a  note,  or  drawer  of  a  bill,  there  a  demand  in 
general  must  be  proved  of  the  acceptor  or  maker,  and  notice 
given  to  the  defendant,  because  the  defendant  is  not  charge- 
able till  such  demand  made,  and  default  of  payment  and 
notice. 

If,  therefore,  a  demand  is  necessary  in  this  case,  it  must  be, 
as  lias  been  already  mentioned,  because  the  words  "  at  West- 
ford  "  are  inserted ;  and  the  doctrine  must  be  that,  where  no 
place  of  payment  is  designated,  then  no  demand  is  necessary  ; 
but,  if  the  party  bound  to  pay  absolutely,  —  the  debt  being 
due  from  him,  —  specify  a  place  where  he  will  pay,  in  that 
case  a  demand  must  be  made,  or  attempted  to  be  made,  at 
that  place,  before  he  is  liable  to  a  suit.  I  find  no  authority 
in  favor  of  an}^  such  docti-ine.  On  the  contrary,  I  apprehend 
that  the  naming  of  a  place  of  payment,  in  the  case  of  an 
absolute  note  for  money,  given  for  a  precedent  debt,  does  not 
essentially  vary  the  nature  of  the  contract.  The  debtor  is 
still  bound  to  find  out  the  creditor,  and  to  pay,  ^is  he  would 
have  been  in  case  no  place  of  payment  had  been  designated. 
Here  he  obliged  himself  to  pay  at  Westford  ;  but  this  did  not 
narrow  the  obligation  he  was  under,  in  respect  of  the  pre- 
cedent debt,  to  pay  anywhere.  If  the  promise  had  been  to 
deliver  specific  articles  instead  of  money,  the  case  would  be 
different ;  the  place  must  then  be  considered  as  parcel  of  the 
contract.  Here  it  is  only  to  be  considered  as  a  circumstance. 
Co.  Litt.  212  a;  Amer.  Prec.  82. 

In  the  case  of  Smith  v.  De  la  Fontahie,  the  acceptor  of  a  bill 
of  exchange  accepted  to  pay  at  his  banker's.  The  plaintiff 
could  not  prove  a  presentment  of  the  bill,  or  demand  of  pay- 

(a)  A  contract  in  a  particular  place  makes  a  man  a  debtor  in  every 
place  in  England.     1  Wms.  Saund.  74. 


MAY   TERM,   1807.  ITl 


Walton  r.  Henderson. 


nient  at  tlie  banker's,  notwithstanding  which  the  jury  found 
for  him.  The  Court  held  the  proof  unnecessary,  and  refused 
to  grant  a  new  trial.  This  is  a  stronger  case  than  the  i)resent. 
The  acceptor  seems  entitled  to  have  the  bill  presented  l)er(5re 
he  is  called  on  for  payment.  He  was  not  the  original  debtor. 
He  was  only  liable  on  his  engagement,  and  the  promise  was 
to  jiay  when  presented  at  his  banker's.  Bishop  v.  Chitty, 
2  Stra.  1195,  is  not  contra.  That  was  where  the  holder 
had  taken  a  draft  on  the  banker,  and  had  been  guilty  of 
negligence  in  not  demanding  payment  of  the  banker.  To 
make  this  case  like  that,  this  note  should  have  contained  an 
engagement  to  pay  at  J.  Abbot's,  or  rather  an  engagement 
that  J.  Abbot  should  pay,  and,  if  he  did  not,  Henderson 
would. 

Saunderson  v.  Judge,  2  H.  Bl.  509,  is  not  an  authority  for 
defendant.  In  that  case,  — indorsee  v.  indorser,  —  the  maker, 
by  memorandum  at  the  bottom  of  the  note,  had  engaged  to  pay 
at  the  house  of  Saunderson  &  Co.  (plaintiffs).  The  maker  had 
absconded.  The  Court  held  no  demand  was  necessary  in  this 
case,  Saunderson  &  Co.  having  no  funds  of  the  maker,  who  had 
absconded  ;  and,  if  necessary,  it  would  be  sufficient,  if  made  at 
the  place  appointed.  It  was  not  determined  that,  if  the  suit 
had  been  against  the  maker,  and  the  memorandum  to  be  con- 
sidered as  a  part  of  the  contract,  demand  must  have  been 
made  at  the  house  of  Saunderson  &  Co. 

I  have  found  no  case  where  the  naming  of  a  place  of  pay- 
ment has  been  held  to  make  a  demand  necessary,  where  no 
demand  was  necessary  before.  Where  a  demand  is  necessary 
and  a  place  be  designated,  there  demand  may  be,  and  perhaps 
must  be,  at  that  place. 

Dutch  West  India  Co.  v.  Van  Moses,  1  Stra.  612  (5  G. 
Bacon,  58  ;  2  Ld.  Raym.  1532).  Covenant  to  pay  money 
borrowed  at  Amsterdam,  the  payment  to  be  in  the  bank 
there.  It  was  held  that  an  action  lay  in  England,  where  the 
debtor  was  found  ;  the  action  was  really  for  the  money  lent, 
a  thing  transitory  and  personal.  The  defendant  is  a  debtor 
wherever  he  goes,  and  may  be  sued  wherever  found.  The 
case  is  only  applicable  so  far  as  it  goes  to  show  that  no  proof 


172  CHESHIRE. 


Walton  V.  Henderson. 


was  required  of  any  demand  for  the  money  at  the  Bank  of 
Amsterdam. 

When  a  contract  is  made,  in  a  particular  country,  for  payment 
of  money,  whether  a  place  in  such  country  be  specified,  at 
which  payment  will  be  made,  or  not,  it  will  be  understood  as 
the  intention  of  the  parties  that  it  should  be  paid  in  such 
country ;  and  yet,  when  sued  in  another  country,  it  never 
was  considered  as  a  ground  of  defence,  that  no  demand  had 
been  made  in  the  country  where  the  contract  was  made  ;  or, 
in  other  words,  the  place  of  payment  of  money  due  for  a  pre- 
cedent debt  is  not  material. 

It  is  laid  down  in  Co.  Litt.  210  b,  n.  1,  that,  if  A.  cove- 
nant with  B.  that  C.  shall  pay  B.  £100,  at  Rotterdam,  without 
suit,  on  request,  before  B.  can  maintain  an  action  against  A. 
for  the  money,  there  must  be  a  demand  of  C.  ;  for  A.  only 
covenanted  to  pay  on  C.'s  neglect  or  refusal.  But  this  de- 
mand may  be  made  anywhere ;  for,  if  limited  to  Rotterdam, 
perhaps  C.  might  never  go  there,  and  then  the  engagement 
would  be  of  no  effect,  (a) 

But,  if  the  law  were  otherwise,  if  the  place  were  material 
in  this  case, —  Henderson  not  obliged  to  pay  till  demand  made 
at  Westford,  —  yet  the  holder,  under  the  circumstances  of  this 
case,  is  not  obliged  to  make  demand.  He  is  entitled  to  sue 
without  request,  and  that  for  two  reasons. 

1.  Because  the  place  is  so  uncertainly  described  that  no 
demand  could  be  made.  (6)  To  say  that  the  holder  of  the 
note  may  choose  the  place  in  Westford  at  which  to  demand 
is  making  the  demand  an  idle,  though  an  expensive,  ceremony. 
Suppose  it  had  been  still  more  general,  —  an  engagement  to 
pay  in  the  County  of  Middlesex  or  in  the  Commonwealth  of 
Massachusetts. 

If  Henderson  had  notified  the  holder  of  the  bill  of  a  par- 
ticular  place  in  Westford  at  which  he  would  pay,  e.  g.  at 

(a)  This  would  be  an  authority  to  show  that,  if  a  demand  necessary  in 
this  case,  yet,  if  Henderson  removes  from  Westford,  Walton  not  obliged 
to  demand. 

(b)  I  have  found  no  case  where  the  name  of  a  town  or  city  is  held  the 
designation  of  a  place  of  payment. 


MAY   TERM,   1807.  173 


Walton  V.  Henderson. 


J.  Abbot's,  if  a  demand  necessary,  this  notice  would  cure  the 
defect  of  uncertainty.     No  such  notice  was  given. 

2.  The  holder  of  this  note  is  not  bound  to  demand  payment 
at  Westford,  because  Henderson  liad  removed  from  that  place. 
Amer.  Prec.  82.  It  will  not  be  pretended  that  plaintiff  was 
bound  to  demand  till  December,  1805.  There  was  then  no 
person  in  Westford  of  whom  demand  could  be  made.  Ac- 
cording to  the  authority  cited  from  Co.  Litt.  210  b,  n.  1,  no 
demand  at  Westford  was  essentially  necessary,  (a)  If  the 
promisor  has  put  it  out  of  the  power  of  the  holder  to  make  the 
demand  at  the  place  specified,  he  is  not  bound  to  demand 
elsewhere ;  and  the  promisor  shall  derive  no  advantage  from 
his  own  act,  nor  shall  he  subject  the  holder  to  any  disad- 
vantage. (5) 

It  may,  perhaps,  be  said  that  he  might,  in  this  case,  have 
demanded  at  Jaffrey  ;  but  suppose  Henderson  had  removed 
to  Ohio,  leaving  estate  in  Jaffrey. 

If  Abbot  be  the  agent  of  Henderson,  no  doubt  Henderson, 
by  giving  notice  to  Walton  that  Abbot  was  his  agent,  might 
make  demand  on  Abbot  necessary  (if  a  demand  necessary 
at  all).  But  no  such  notice  was  given.  Walton  was  not 
obliged  to  apply  to  Abbot  for  payment,  for  this  plain  reason, 
he  had  no  notice  that  Abbot  would  pay. 

In  this  case  there  has  been  no  payment  or  tender,  nor  any 
thing  equivalent  to  payment  or  tender,  —  any  thing  which  in 
law  or  equity  bars  the  plaintiff's  demand.  The  mere  pro- 
viding of  a  fund  for  the  payment  of  this  note  is  no  defence  in 
equity,  unless  the  plaintiff  had  notice  of  the  fund,  and  was 
bound  to  resort  to  it  for  payment  (^Folliot  v.  Oydtn,  1  H.  Bl. 
123-136).  The  defence  is  not  payment  or  tender,  but  that 
the  plaintiff  is  not  entitled  to  sue  till  he  has  demanded  the 
money  at  Westford.  My  answer  is,  that,  this  note  being 
given   for  a  precedent  debt,  and  being  for   the  payment  of 

(a)  [Reference  is  here  made  to  Ruggles  v.  Patten,  8  Mass.  480,  and 
Dickinson  v.  Bowe^i,  16  East,  110.] 

(b)  If  drawee  or  maker  of  bill  or  note  has  removed  to  an  unreasonable 
distance  or  an  unknown  place,  the  bill  or  note  is  to  be  considered  as  dis- 
honored.    Bayl.  Bills,  30;  Ld.  Raym.  743. 


174  CHESHIRE. 


Walton  V.  Ilerulerson. 


money  absolutely,  the  place  is  not  parcel  of  the  contract,  so  as 
to  make  a  demand  necessary  ;  that  the  words  "  at  Westford  " 
have  no  effect.  But  if  this  be  not  so  [my  answer  is],  that 
the  place  is  here  so  uncertainly  described  that  it  imposes  no 
duty  on  the  holder  to  make  demand,  at  least  till  notice  of  a 
more  particular  place,  e.  g.  J.  Abbot's  dwelling-house,  »S:c.  ; 
that,  even  if  the  place  had  been  specially  designated,  when 
Henderson  removed  from  Westford,  the  plaintiff  became  ex- 
cused from  the  obligation  to  demand  payment  at  Westford  ; 
and,  as  neither  the  law  nor  the  contract  imposed  on  him  the 
necessity  of  demanding  at  any  other  place,  this  action  is 
well  brought  without  any  demand  ;  and,  consequently,  that 
the  plaintiff"  is  entitled  to  judgment. 

I  am  glad  to  find  the  law  is  so,  for,  otherwise,  many  per- 
sons taking  these  notes  as  bank  bills  would  be  greatly  de- 
frauded, (a)  I  am  of  opinion  that  money  had  and  received, 
money  laid  out  and  expended,  and  perhaps  money  lent,  would 
lie  in  this  case  ;  but  it  is  not  necessary  to  give  an  opinion  on 
this  point,  as  the  Court  is  clearly  of  opinion  that  the  action  is 
maintainable  on  the  note. 

On  this  opinion  given,  the  defendant,  according  to  the  terms 
of  the  agreement,  was  defaulted.  (6)  ^ 

(a)  Very  few  persons  would,  it  is  apprehended,  advert  to  the  words 
"at  Westford;"  and,  if  they  did,  fewer  still  would  suppose  that,  if  Hen- 
derson, the  maker,  thought  tit  to  leave  that  place,  the  debt  was  lost  unless 
they  despatched  a  man,  with  a  witness  by  his  side,  to  demand  payment  in 
the  streets  of  Westford.  I  believe  no  man,  whose  mind  was  not  a  little 
warped  by  legal  quibbles,  would  ever  think  of  setting  out  on  so  silly  an 
errand. 

{Qucere,  whether  the  declaration  should  not  have  stated  the  matter  of 
removal  from  Westford.) 

(6)  See  14  East,  498,  semble  contra;  and  16  East,  110;  1  Wms.  Saund. 
33;  N.  H.  Laws,  Act  of  June  14,  1805,  397 ;  Mass.  Act  on  the  same  sub- 
ject; Fenion  v.  Goundry,  2  Campb.  65(j,  n. 

Walcot,  administratrix,  v.  Van  Santvonrd,  Fed.  Repub.,  Baltimore, 
Nov.  9,  1819;  8.  c.  New  York,  October  Term,  1819,  held,  that  [in]  actions 


1  Brigham  v.  Smith,  1844,  16  N.  H.  274,  was  an  action  on  a  note  payable 
"at  the  Suffolk  Bank,  Boston,  on  demand."  It  was  held  that  a  demand 
at  that  place  was  requisite  to  the  maintenance  of  the  suit.     In  an  unre- 


MAY   TERM,  1807.  175 


Winch  I'.  Wright. 


Joseph  Winch  v.  —  Wright,  B.  Wright,  Joel  Wright, 
Amos  Thompson,  and  Jesse  Hardy. 

Receiptors  refused  to  deliver  attached  property  when  demanded  by  the  sheriff  on 
the  execution.     Thereupon,  tlie  debtor's  body  was  taken  on  tiie  execution. 

Smith,  C.  J.,  was  of  opinion  that  taking  the  body  did  not  discharge  the  receipt- 
ors from  their  liability  to  the  oflBcer. 

The  cause'  having  been  compromised,  no  decision  was  given. 

This  was  an  action  of  trover  for  two  oxen,  six  cows,  two 
three-year  old  steers,  ten  other  young  cattle,  one  horse,  eigh- 
teen sheep,  three  hogs,  twenty  tons  of  E.  hay ;  all  valued  at 


Plea :  the  general  issue. 

This  cause  was  opened  to  the  jury  at  last  Term,  when  it 
appeared  in  evidence  that  Adams  &  Nazro  sued  one  Nathaniel 
Emerson.  Calvin  Bragg  was  the  deputy  sheriff  who  served 
the  writ.  He  at'.ached  certain  personal  property  of  Nathaniel 
Emerson.      John     Emerson,  Isaiah    Hardy,    Nathan    Hardy, 

on  notes  or  bills  payable  at  a  particular  place,  as  against  the  maker  of  the 
note  or  the  acceptor  of  the  bill,  it  is  not  necessary  for  the  plaintiff  to 
allege  or  prove  a  presentment  for  payment  at  the  time  or  place  specified, 
but  that  the  non-existence  of  the  fact  of  presentment  is  matter  of  defence 
only,  to  be  available  when  the  defendant  shows  that  he  was  ready  at  the 
day  and  place  to  pay.     Utica  Gaz. 

See  the  case  17  Johns.  248,  Walcot,  administratrix,  v.  Van  Santvoord. 


ported  case  in  Coos  County,  July  Term,  1868,  the  note  was  payable 
"on  demand  at  Columbia;"  and  a  demand  was  held  necessary.  Author- 
ities for  and  against  the  doctrine  of  Brigham  v.  Smith  are  cited  in  1  Pars. 
Bills  &  N.  1st  ed.  429,  430,  and  in  1  Daniel,  Neg.  Inst.  §§  645-647. 

In  Cook  V.  Martin,  1845,  5  Sm.  &  M.  379,  it  was  held,  that,  whatever 
may  be  the  rule  with  reference  to  notes,  where  the  demand  can  be  made 
instantly,  no  demand  at  the  place  is  necessary  upon  a  note  payable  at  a 
particular  place,  "  on  demand,  five  months  after  date  ;  "  the  Court  saying, 
p.  393,  that  such  notes  "  can  only  be  regarded  as  notes  payable  at  a  particu- 
lar time." 


176  CHESHIRE. 


Winch  V.  Wright. 


and  Reuben  Heath  gave  a  receipt  for  the  property,  promising 
to  redeliver  it  to  Bragg  on  demand, 

Adams  &  Nazro  obtained  judgment,  Superior  Court,  Octo- 
ber, 1805.  The  execution  was  delivered  to  Bragg,  and,  within 
tliirty  days  next  after  judgment,  he  demanded  the  goods  at- 
tached, which  were  not  delivered.  Nov.  13,  1805,  he  obtained 
a  writ  of  attachment,  in  his  own  name,  against  the  receiptors, 
John  Emerson  and  others ;  and  on  Dec.  3, 1805,  Joseph  Winch, 
the  present  plaintiff,  attached  the  property  mentioned  in  the 
present  declaration,  which  was  delivered  to  the  present  de- 
fendants, on  their  receipt,  promising  to  redeliver  the  same  to 
Winch,  the  plaintiff,  on  demand.  The  whole  property  was 
valued  at  $1,300. 

At  April  Term,  1806,  C.  C.  P.  Cheshire  Co.,  judgment  was 
rendered  in  the  suit  Bragg  v.  John  Emerson  et  ah. ;  damages 
and  costs  $1,301.92. 

Before  the  commencement  of  the  present  action,  viz.  April 
28, 1806,  Winch  demanded,  on  Bragg's  execution,  the  property 
attached,  and  which  had  been  delivered  to  defendants,  and 
they  refused  to  deliver  it.  Immediately  upon  this  refusal, 
Bragg,  who  was  present,  directed  Winch  to  take  the  bodies 
of  John  Emerson  and  others,  the  first  receiptors,  which  he 
did  ;  and  they  are  now  in  prison  by  virtue  of  that  commit- 
ment. 

[The  defendants  attempted  to  show  that  Winch  discharged 
them  from  their  engagement,  by  certain  declarations  which  he 
made  after  the  bodies  of  the  first  receiptors  were  taken  on  the 
execution.] 

As  there  was  no  dispute  about  the  facts,  except  this  parol 
discharge  by  Winch,  it  was  agreed  that  the  cause  should  be 
withdrawn  from  the  jury,  and  con.sidered  as  a  case  stated  for 
the  opinion  of  the  Court. 

The  parties  compromised,  and  the  action  was  dismissed  at 
this  Term. 

Smith,  C.  J.,  committed  some  views  to  writing,  from  which 
the  following  is  an  extract :  — 

The  defence  is,  first,  that  the  receipt  became  void  on  the 


MAY   TERM,  1807.  177 

Winch  V.  Wright. 

bodies  of  the  owners  of  the  goods  attached  being  taken  in  ex- 
ecution ;  tliat  this  is  a  satisfaction  of  the  debt  due  Bragg. 

But  tliis  is  not  so:  Bragg  cannot  take  the  bodies  and  estate 
of  his  debtors  at  the  same  time  in  execution  ;  but  Bragg  may 
take  the  bodies,  and  Winch  the  estate.  Winch  became,  on 
the  attachment,  answerable  to  Bragg  for  the  goods  attached  ; 
and  this  right  of  Bragg  to  look  to  Winch  still  exists,  till  actual 
valuable  satisfaction  made  by  John  Emerson  et  ah.,  his  debtors  ; 
i.  e.,  till  payment  of  the  debt.  By  taking  the  bodies,  Bragg 
did  not  discharge  the  estate  ;  he  had  no  election  ;  he  could  not 
get  the  estate.  If  defendants  had,  on  demand  by  Winch, 
produced  the  property,  and  Bragg  had  chosen  to  lev}'  on  the 
bodies,  defendants  would  have  been  discharged.  Nothing 
discharges  defendants  from  their  engagements  except  the 
production  of  the  property  on  demand,  or  satisfaction  of  the 
judgment  to  respond  which  the  attachment  was  made,  i.  e.  pay- 
ment. Perhaj)s,  indeed,  if  no  demand  had  been  made,  and  no 
refusal  on  the  part  of  defendants,  and  Bragg  had  chosen  to 
take  John  Emerson  et  ah.,  liis  debtoi's,  in  execution,  it  might 
have  been  considered  as  satisfaction  ;  he  might  be  considered 
as  having  made  his  election.  But  in  this  case  he  had  no  choice. 
He  might  say,  "  I  cannot  get  the  estate  ;  I  will  take  the  bodies, 
and  pursue  my  remedy  against  Winch,  who  ought  to  have  had 
the  goods  here  on  wiiich  I  migiit  have  levied."  The  body  is 
not  satisfaction  like  payment.  If  the  persons  now  in  execution 
were  all  to  die,  the  debt  would  still  live,  it  would  survive  them. 
The  rule  of  law  on  which  defendants  rely  extends  no  farther 
than  this,  that,  on  the  same  judgment,  the  body  and  property 
of  the  same  person  shall  not  be  taken  in  execution. 

In  Lord  v.  Hobbes,  Rockingham,  September  Term,  1804 
[reported  ante],  which  was  debt  on  bond  against  defendant, 
and  another  who  died  since  commencement  of  this  suit,  to 
abide  the  award  of  referees  on  submission  of  an  action  pending 
in  court,  there  had  been  judgment  (in  the  suit  referred)  on 
the  report,  and  Hobbes  had  been  committed  in  execution. 
It  was  held  that  this  commitment  did  not  discharge  the  bond  ; 
though,  if  the  judgment  on  the  award  had  been  paid,  it  would 
have  been  a  good  dischars'e. 

12 


178  ROCKINGHAM. 


Brown  v.  Langdon. 


The  holder  of  a  bill  may  sue  the  acceptor,  drawer,  and  in- 
dorsers,  at  the  same  time  ;  have  execution  against  them  all ; 
may  take  the  bodies  of  each  in  execution  ;  he  may  have  ca.  sa. 
against  all  but  one,  and  fieri  facias  against  that  one  ;  nothing 
but  actual  payment  will  be  a  discharge.  Chitty,  182,  183  ; 
Kyd,  116,  117.1 


ROCKINGHAM,    SEPTEMBER   TERM,    1807. 


Thomas  Brown  and  Samuel  Larkin,  Church-wardens  of 
St.  John's  Church,  Portsmouth,  v.  Henry  Langdon 

AND   FOUR    others. 

A  religious  corporation  is  capable  of  taking  by  devise. 

Devise,  in  1765,  to  the  Church  of  England  as  by  law  established  in  Portsmouth, 
or  Queen's  Chapel  in  Portsmouth,  the  bequest  to  be  under  the  directions  of  the 
church-wardens  of  said  parish  for  the  time  being,  and  to  remain  as  a  perpetual 
glebe  to  the  said  church  and  parish  and  to  their  successors  for  ever. 

Held,  that  the  devise  to  Queen's  Chapel  was  good,  if  Queen's  Chapel  was  a  cor- 
porate body  in  1765.  That  it  was  a  corporate  body  may  be  proved  other  than 
by  act  of  the  legislature  or  governor.  Exercise  of  corporate  privileges  for 
upwards  of  a  century,  recognition  in  ancient  records  and  papers,  and  in  acts  of 
the  legislature,  are  evidence  on  this  question. 

This  was  an  action  of  ejectment,  in  which  the  plaintiffs, 
as  church-wardens,  demand  against  the  defendants  an  un- 
divided moiety  of  a  tract  of  land  and  three  dwelling-houses 
thereon,  &c.,  situate  in  Portsmouth,  containing  fourteen  acres, 
more  or  less,  bounded  as  follows,  &c.,  and  is  the  same  which 
Samuel  Sherburne,  late  of  Portsmouth  aforesaid,  esquire,  de- 
ceased, by  his  last  will  and  testament,  devised  to  said  church  ; 
whereupon  said  Brown  and  Larkin,  as  wardens  as  aforesaid, 
complain  and  say  that,  by  a  certain  statute  of  said  State, 
made  and  passed  the  fifteenth  day  of  February,  1791,  entitled 

1  This  opinion  is  directly  sustained  by  Twining  v.  Foot,  1850,  7  Cush. 
512.     See  also  note  to  Lord  v.  Ilobbes,  ante. 


SEPTEMBER   TERM,  1807.  179 

Brown  v.  Langdon. 

An  Act  to  Incorporate  the  Episcopal  Society  in  Portsmoutli,  it 
is,  among  other  things,  enacted  as  follows  (the  declaration  then 
sets  forth  the  preamble  to  the  act,  and  then  adds)  :  tliat  the 
said  parish  (the  Episcopp,l  Society  in  Portsmouth)  be,  and 
hereby  are,  formed  into  a  body  politic  or  corporate,  by  the 
name  of  Saint  John's  Church,  with  all  the  privileges  and  im- 
munities necessary  or  incident  to  a  religious  parish  or  society  ; 
with  power  to  hold  the  church  and  church-yard,  and  all  grants 
and  endowments  heretofore  made,  or  that  hereafter  may  be 
made,  said  church  ;  with  full  power  to  sue  for  and  recover,  in 
the  name  of  the  church-wardens  for  the  time  being,  any  real  or 
personal  property  belonging  to  said  church,  of  any  person  who 
already  hath  or  hereafter  may  have  any  such  property  in  his 
hands  or  possession  ;  and  to  do  and  transact  all  and  every  act 
that  any  parish  or  religious  society  may  or  by  law  can  do  within 
this  State.  (The  declaration  then  recites  the  second  section 
of  the  act,  whereby  the  name  of  the  church  is  altered  from 
Queen's  Chapel  to  St.  John's  Church.)  Tlie  plaintiffs  further 
say,  that  the  aforesaid  St.  John's  Church,  within  thirty  years 
last  past,  were  seised  and  possessed  of  the  demanded  premises 
in  their  demesne  as  of  fee,  and  that  defendants  disseised  the 
church,  Jan.  1,  1805. 

Second  count.  Plaintiffs,  as  wardens,  by  virtue  of  the 
statute,  and  for  the  use  of  said  church,  sue  for  the  same 
premises ;  and  complain  and  say  that  the  aforesaid  Sherburne, 
in  his  lifetime,  Feb.  5,  1765,  was  seised,  and  by  his  will  de- 
vised the  premises  to  the  said  church  in  fee-simple,  and  died 
seised,  the  will  proved  Feb.  18,  1765,  and  the  aforesaid  church 
the  same  day  entered  ;  by  virtue  whereof,  and  by  force  of  the 
said  statute,  the  said  church,  within  thirty  years  last  past,  be- 
came seised;  defendants  disseised,  &c.,  Jan.  1,  1805. 

Third  count.  Same  plaintiffs,  in  same  capacity,  demand 
same  premises,  set  forth  seisin  of  Samuel  Sherburne,  who  made 
will,  and  thereby  devised  the  premises  to  the  church,  to  hold  to 
them  and  their  successors  as  a  perpetual  glebe  for  the  use  of 
said  church  ;  Samuel  Sherburne  died  seised  ;  will  proved,  Feb. 
18,  1765 ;  same  day,  Artiiur  Brown,  late  of  said  Portsmouth, 
clerk,  being  then  and  until  the  time  of  his  death  parson  and 


180  ROCKINGHAM. 


Brown  v.  Langdon. 


minister  of  said  cliurch,  entered,  and  thereby  became  seised  of 
the  same,  to  hold  to  him  and  his  successors  in  right  of  said 
church,  and  continued  so  seised  thereof,  and  died  seised,  March 
1,  1776 ;  whereby,  and  by  virtue,  of  the  aforesaid  statute, 
the  said  church,  within  thirty  years  last  past,  became  seised  in 
tiieir  demesne  as  of  fee  ;  yet  defendants  have  disseised  them, 
Jan.  1,  1805. 

Writ  dated  March  1,  1805. 

The  defendants  pleaded  the  general  issue,  reserving  libert}'- 
(which  does  not  appear  to  be  agreed  to)  to  give  special  matter 
in  evidence. 

Mason^  for  j)lain  tiffs. 

Sullivan  and  Story^  for  defendants. 

Smith,  C.  J.,  summed  up  to  the  jury,  February  Term,  1807. 

In  this  case,  Brown  and  Larkin  are  merely  nominal  plaintiffs. 
The  real  party  plaintiff  is  St.  John's  Church.  If  the  church 
recover,  it  must  be  because  they  have  a  good  title.  If  the 
church  has  no  title,  it  is  immaterial  whether  the  defendants 
have  any  title  or  not.  The  church  must  also  prove  a  seisin 
within  thirty  years  next  before  March  1,  1805. 

Act  of  incorporation  was  passed  Feb.  15,  1791. 

[The  plaintiffs  claim  title  under  devise  of  Samuel  Sher- 
burne.] 

Will  of  Henry  Sherburne,  Dec.  27,  1757,  proved  April  29, 
1758;  devise  of  premises  to  his  sons,  Samuel  and  Henry,  in 
fee.  Will  of  Samuel  Sherburne,  Feb.  5,  1765,  proved  Feb.  18, 
1765,  is  in  these  words:  "  I  give  and  bequeath  to  the  Church 
of  England,  as  by  law  established  in  the  town  of  Portsmouth, 
£2,000,  old  tenor;  to  the  support  of  an  organist  in  Queen's 
Chapel,  under  the  care  and  direction  of  the  vestry  and  church- 
wardens for  the  time  being.  I  give  and  bequeath  to  the  said 
church  or  chapel  my  moiety  or  half  part  of  a  pasture  or  lot  of 
land  and  meadow  (the  premises)  ;  which  said  tract  was  given 
me  by  my  honored  father  in  his  last  will  and  testament ;  and 
this  bequest  to  be  under  the  directions  of  the  church-wardens 
of  said  parish  for  the  time  being,  and  to  remain  as  a  perpetual 


SEPTEMBER   TERM,  1807.  181 

Brown  i;.  Langdon. 

glebe  to  the  said  church  and  parish,  and  to  their  successors  for 
ever."  He  then  devises  to  the  church  another  small  lot,  to  be 
under  the  care  and  directions  of  the  church-wardens  and  ves- 
try as  aforesaid,  intended  as  a  place  to  rebuild  a  school-house 
upon,  to  have  and  to  hold  the  same  to  the  church-wardens  and 
vestry  for  the  time  being,  for  ever. 

From  these  papers  it  appears  that  Samuel  Sherburne  was 
the  owner  (for  Col.  Henry  Sherburne's,  his  father's,  title  is 
admitted)  in  1765  ;  that  he  attempted  to  devise  it,  by  his  will 
of  that  date,  to  tlie  Clnirch  of  Enghind  as  by  law  established 
in  Portsmouth,  or  Queen's  Chapel  in  said  town.  There  is  no 
doubt  Samuel  Sherburne  was  capable  of  devising;  but  can 
the  plaintiffs,  St.  John's  Church,  take  and  hold  the  estate  de- 
vised ?  If  they  cannot,  verdict  must  be  in  favor  of  defendants, 
and  the  land  will  either  go  to  the  residuary  devisee  in  Samuel 
Slierburne's  wdll,  or  to  his  heirs  at  law.  It  is  very  clear  that 
Samuel  Sherburne  could  have  accomplished  his  end  in  another 
form,  against  which  there  could  be  no  objection.  He  might 
have  devised  to  certain  persons,  to  hold  for  specified  purposes, 
or  in  trust  to  apply  the  rents  and  profits  to  the  use  of  the 
minister  officiating  in  that  church  or  chapel.  2  Wooddes. 
276,  n.  k.  The  legal  property  would  in  that  case  have  been 
in  the  devisees,  and  they,  or  (if  so  provided  in  the  devise)  the 
survivor,  might  convey  to  others  to  hold  in  trust  as  before. 

If  this  church  had  been  incorporated  in  1765,  as  they  were 
in  1791,  it  is  said,  by  defendant's  counsel,  they  could  not  take 
by  devise.  If  tliey  could  purchase  in  any  other  way,  I  see  no 
reason  why  they  could  not  take  in  this  way.  I  have  not  had 
an  opportunity,  on  this  point,  of  availing  myself  of  information 
acquired  by  former  researches  into  the  j)Owers  and  capacities  of 
corporate  bodies  in  this  State.  But  at  present  I  see  no  reason 
to  doubt  but  that  a  body  politic,  like  our  towns,  parishes,  or  relig- 
ious societies,  is  capable  of  taking  by  devise,  independent  of 
any  special  authority  contained  in  an  act  of  incorporation. 

But  it  is  further  said  that,  supposing  the  Episcopal  Ciiurch 
incorporated  in  1765,  still  this  devise  would  not  give  them  the 
property  in  question.  This  action  is  brought  by  St.  John's 
Church,  and  the  devise  was  to  the  Church  of  England  by  law 


182  ROCKINGHAM. 


Brown  v.  Langdon. 


established  in  Portsmouth,  or  Queen's  Chapel.  At  present,  I 
am  of  opinion  there  is  nothing  in  this  objection.  [16  Mass. 
495,  cited  in  margin.]  If  the  church  was  a  body  politic  in 
1765,  by  the  name  of  Queen's  Chapel,  this  devise  is,  in  })oint 
of  form,  sufficient  to  transfer  the  property  to  them,  (a)  The 
change  of  the  name  —  for  that  would  be  the  only  effect  of  the 
act  of  incorporation  in  1791  —  would  not  devest  the  prop- 
erty. (J)  If  it  would,  here  it  is  expressly  vested  in  St.  John's 
Church.  The  legislature  cannot  take  Mr.  Langdon's  property 
from  him  and  give  it  to  St.  John's  Church  ;  but  they  can,  with 
the  consent  of  Queen's  Chapel,  vest  their  property  in  tlie  same 
persons  by  the  name  of  St.  John's  Church. 

It  has  been  further  objected  that,  supposing  Queen's  Chapel 
or  the  Episcopal  Church  to  be  a  body  politic  in  1765,  yet, 
being  a  religious  corporation,  they  cannot  take  property. 

Common  law,  as  well  as  statute  law,  grows  out  of  the  situa- 
tion and  circumstances  of  the  people.  There  was  a  time  in 
England  when  the  lay  gentry  thought  they  saw  the  property 
flowing  into  the  coffers  of  the  clergy  a  little  too  freely.  The 
clergy  of  that  day  were  not  content  with  the  personal  prop- 
erty ;  they  became  possessed  of  a  considerable  proportion  of 
the  real  property  of  the  kingdom.  Hence  the  laws  to  restrain 
alienations  to  the  clergy.  These  laws  were  not  imported  into 
this  country,  at  least  into  New  England,  because  they  were 
not  wanted.  The  clergy  were  poor,  —  I  speak  of  the  first  clergy 
of  New  England,  —  they  abhorred  riches.  The  wealth  of  a 
clergyman  in  those  days  was  his  crown  of  rejoicing,  the  num- 
ber of  converts  he  made,  the  number  of  sinners  he  reclaimed. 

(a)  It  has  been  said  by  defendant's  counsel  that  this  devise  is  to  the 
parson,  and  this  gives  no  title  to  the  church.  1  Blackst.  497;  Pow.  Dev. 
336.  The  parson  could  not  take,  because,  in  this  State,  he  is  not  a  corpora- 
tion sole,  as  in  England;  and  the  legislature  could  not,  in  1791,  devest  the 
property  from  the  parson,  if  he  could  take,  and  vest  it  in  the  church. 
But  I  atn  of  opinion  this  was  not  a  devise  to  the  parson,  but  to  tlie  church. 

(6)  Though  the  name  of  a  corporation  be  clianged  (as  in  the  case  of  a 
new  charter) ,  yet  it  still  retains  its  former  rights  and  privileges.  1  Chr. 
Notes,  G.50.  A  change  of  name  or  new  charter  does  not  merge  the  ancient 
privileges  :  Coin.  Dig.  Franchises,  F.  9,  g.  5;  and  it  shall  retain  the  po.s- 
sessious  it  had  before. 


SEPTEMBER   TERM,  1807.  183 

Brown  v.  Langdon. 

He  disdained  worldly  wealth.  He  coveted  not  houses  and 
lands.  Very  many  of  the  clergy  of  that  day  accounted  it 
unlawful  and  unchristian  for  a  clergyman  to  have  any  fixed 
salary.  Hence  I  conclude  there  never  was  any  law  in  New 
England  to  prohibit  clergymen  or  religious  corporations  from 
acquiring  property.  It  was  always  the  policy  of  our  law 
to  encourage  public  instruction  in  religion  and  morality,  and 
the  support  of  it  by  religious  corporations.  The  law  never 
could,  then,  have  prohibited  them  from  acquiring  the  means 
of  accomplishing  that  end. 

But  the  great  objection  to  the  plaintiff's  title  is,  that  neither 
Queen's  Chapel  nor  St.  John's  Church  had  any  legal  existence 
till  1791. 

A  devise  to  the  Church  of  England  in  Portsmouth  would  be 
void  for  uncertainty  in  the  description  of  the  devisees.  The 
Church  of  England  never  was  established  by  law  in  this  State. 
A  devise  to  a  society  unincorporated  is  not  valid,  because  it 
cannot  be  ascertained  who  are  to  take  ;  an  unincorporated 
society  has  no  identity  ;  it  cannot  be  ascertained,  (a)  ^ 

Was  there  a  body  politic  in  Portsmouth  by  the  name  of  the 
Church  of  England,  Episcopal  Society,  or  Queen's  Chapel,  at 
the  time  of  this  devise,  Feb.  5,  1765  ?  No  act  of  incorporation 
is  produced  till  that  of  Feb.  15,  1791.  The  act  implies  strongly 
that  no  act  of  incorporation  had  ever  been  passed.  But  [this] 
is  not  conclusive;  the  plaintiffs  may  still  show  an  act,  if  they 
can,  which  constituted  Queen's  Chapel  a  body  politic  before 
this  devise  was  made.  The}'  can  produce  no  such  act ;  but 
they  contend  that  they  can  produce  other  satisfactory  evidence 
of  the  fact :  for  166  years  they  have  acted  as  a  corporate  body ; 
exercised  the  powers  of  a  corporation  ;  have  been  recognized 
by  our  statutes  as  such. 

(a)  Shep.  234,  237.  Lands  cannot  be  granted  to  the  church-wardens  of 
a  parish. 

Parishioners  not  capable  of  taking  by  devise.     2  Wooddes.  27G,  n.  k. 

^  Such  a  devise  is  now  sustainable  under  Gen.  Laws,  c.  153,  §  5.  See 
also  Bellows,  J.,  in  Newmarket  v.  Smart,  18(53,  4.5  N.  IL  87,  98,  99. 
Perley,  C.  J.,  in  The  Dublin  Case,  1859,  38  N.  U.  459,  575;  Hennexxey  v. 
Walsh,  1875,  55  N.  H.  515;  2  Kent,  Com.  Tith  ed.  287,  n.  1,  288,  n.  a. 


184  ROCKINGHAM. 


Brown  v.  Langdon. 


[The  evidence  on  this  point  is  as  follows  : — ] 

A  paper  recorded  in  Portsmouth  Town  Book,  in  1664,  by 
selectmen,  that  it  might  not  b&  lost.  Purport:  Grant,  May 
25,  1640,  by  sundry  individuals,  Fra.  Williams,  Gov.,  Ambrose 
Gibbon,  Assistant,  cum  rtmltis  aliis^  of  a  certain  piece  of 
land,  to  build  a  chapel  upon  (not  the  land  in  dispute),  and 
money.  The  grant  was  made  to  Tho.  Walford  and  Henry 
Sherburne,  church-wardens,  in  perpetuity,  for  tlie  use  of  the 
parish  ;  the  church- wardens  and  others  to  have  the  superin- 
tendence thereof;  not  to  be  alienated  without  the  assent  of 
all  the  parishioners.  Church  built.  Richard  Gibson,  minister 
or  incumbent.  Right  of  presentation  to  be  in  the  parish- 
ioners, (a) 

In  1732,  it  is  admitted,  St.  John's  Church  was  erected,  (6) 
—  then  called  Queen's  Chapel,  —  the  old  chapel  was  in  another 
place. 

June  3,  1754,  Theo.  Atkinson  (afterwards  Cliief  Justice 
and  Secretary  and  Councillor),  conveyed  to  Arthur  Brown, 
rector  of  the  church,  to  him  and  his  successors,  as  feoffees  in 
trust  (present  burial  ground). 

1746,  John  Bartland  devised  the  reversion  of  certain  lands 
to  the  poor  of  the  church  in  Portsmouth. 

1768,  indenture,  between  Hall  Jackson  and  the  wardens  of 
the  church,  of  lands  (not  premises),  for  twelve  years. 

Records  of  the  church  go  back  as  far  as  1740,  and  show  that 
they  have  acted  as  a  corporate  bod3%  made  taxes,  issued  war- 
rants in   the   forms  used  by  selectmen.     The  greatest  legal 

(o)  Aug.  15,  1745,  division  was  made  between  H.  Sherburne  and 
Jotham  Odiorne,  feoffees  in  trust,  and  two  other  wardens  and  the  First 
Congregational  Society,  of  these  lands. 

As  to  this  transaction  in  IGIO,  see  1  Holmes,  .A.merican  Annals,  316,  and 
n.  2  [also  1  Provincial  Papers,  111-113]. 

(i)  This  was  the  first  Episcopal  church  built  in  New  Hampshire. 
2  Holmes,  American  Annals,  131.      [See  4  Provincial  Papers,  650,  n.  1.] 

Note.  Episcopacy  seems  to  have  slept  in  this  State  from  1640  to 
1730.  The  union  with  Massachusetts  would  naturally  tend  to  discourage 
the  growth  of  Episcopacy. 


SEPTEMBER   TERM,  1807.  185 


Brown  v.  Langdon. 


characters  in  the  State  have  been  concerned  in  these  trans- 
actions, (rt) 

Recognition  of  the  church  as  a  body  politic. 

1786,  legishiture,  by  act,  enabled  the  church  to  collect  taxes 
by  sale  of  pews,  March  2, 1786.  Province  Law,  177,  speaks  of 
church- wardens,  and  gives  them  the  power  of  selectmen :  this 
act  passed  1754.  Additional  act,  passed  in  1758,  to  same  effect. 
There  was  then  no  other  Episcopal  parish,  except  in  Ports- 
mouth, in  the  province,  nor  any  wardens  chosen  by  any  other 
parish. 

The  other  parishes  in  Portsmouth  have  acted  in  the  same 
[manner].  Dr.  Buckminster's  was  not  incorporated  by  any 
act  now  appearing,  till  June  15,  1791.  The  South  Parish  was 
not  incorporated,  and  yet  actions  have  been  maintained  against 
them  (i)  before  the  Revolution  ;  which  shows  they  were  con- 
sidered as  a  corporate  body. 

In  Anthology,  November,  1806,  632,  it  appears  that  religious 
parishes  or  societies  in  New  England  have  always  acted  as 
corporate  bodies. 

There  was  probably  some  general  or  special  law,  which  can- 
not now  be  produced  (1  Blackst.  471),  giving  these  parishes 
the  powers  of  corporate  bodies. 

This  is  the  evidence,  and  these  are  the  authorities  and  ob- 
servations of  the  counsel,  to  satisfy  the  jury  that  Queen's 
Chapel  was  a  corporate  body  in  1765.  I  have  not  had  an 
opportunity  to  examine  the  evidence  critically,  nor  to  weigh  and 
consider  attentively  the  authorities  and  the  observations  of  the 
counsel,  and,  therefore,  decline  giving  any  decisive  (<?)  opinion 
on  either.     If  the  jury  find  tliat  plaintiffs  were  a  corporate 

(a)  May  3,  1721,  John  Pickering  conveyed  to  the  minister  and  people 
of  the  old  meeting-house  in  Portsmouth,  those  who  do  attend  and  their 
successors,  land  on  which  to  build  a  church. 

June  If),  1731,  same  lauds  confirmed  by  the  same  description  of  grantees 
by  Thomas  Pickering. 

(/))  Srllson  V.  Proprktors  and  Parishioners  of  the  South  Church  in  Ports- 
moiilh,  for  disturbing  plaintiff  in  tne  use  and  enjoyment  of  his  pew.  Sup. 
Court,  1769.     Verdict  for  plaintiff;  damages  forty  shillings. 

(c)  The  Chief  Justice  expressed  doubts  as  to  the  propriety  of  letting  in 
this  kind  of  evidence  to  prove  the  incorporation. 


186  ROCKINGHAM. 


Brown  v.  Langdon. 


body,  by  the  name  of  Queen's  Chapel,  or  the  Church  of  Eng- 
land in  Portsmouth,  in  1765,  then  the  title  of  plaintiffs  is,  in 
the  opinion  of  the  Court,  good  and  sufficient  in  law.  If  not, 
verdict  must  be  for  defendants. 

But,  as  has  been  already  intimated,  plaintiffs  must  not  only 
have  a  good  title,  but  they  must  prove  a  seisin  within  thirty 
years  next  before  March  1,  1805. 

As  to  this  point,  (a)  it  is  not  thought  necessary  to  state  the 
evidence  in  this  report ;  nor  is  it  necessary  to  state  the  title  of 
the  defendants  (it  was  by  release  from  the  heirs  at  law  of 
Henry  Sherburne,  the  first  devisor,  one  half;  and  the  other 
raoiety  from  Samuel  Sherburne,  the  residuary  devisee  of 
Samuel  Sherburne,  to  Woodbury  Langdon,  Aug.  11,  1779). 

Note.  Members  of  the  church  were  admitted  as  witnesses, 
though  objected  to  by  defendants. 

Juri/  did  not  agree.      Cause  cotitiniued. 

At  September  Term,  1807,  dismissed,  parties  having  com- 
promised; defendants  having  paid  the  church  part  of  the  value 
of  the  lands  sued  for,  ut  audivi} 

(a)  Brown  died  in  1773.  There  did  not  seem  to  be  much  evidence  of 
any  actual  possession  by  the  church,  or  their  lessees,  after  that  time.  But 
the  title  of  defendants  did  not  accrue  till  1779;  and  those  under  whom 
they  claimed  did  not  appear  to  have  denied  the  plaintiffs'  title,  but  in 
many  instances  to  have  recognized  it,  and  in  some  instances  after  1776. 
It  was  not  distinctly  stated  in  the  testimony  when  Woodbury  Langdon 
entered. 

In  1736,  Rev.  A.  Brown  was  ordained  minister  of  that  church,  with  a 
salary  from  the  Society  for  Propagating  the  Gospel.  2  Holmes,  American 
Annals,  134. 

^  I.  A  bequest  to  "the  Church  or  Congregational  Society  in  Green- 
land," may  be  construed  as  a  gift  to  the  Congregational  Society  in  Green- 
land; it  being  shown  that  there  was  a  legal  corporate  body  of  that  name, 
and  there  being  no  corporation  or  association  bearing  the  name  of  The 
Church  in  Gi-eeuland.     Congregational  Society  \.  Hatch,  1869,  48  N.  H.  393. 

II.  As  to  proof  of  incorporation,  see  New  Boston  v.  Dunbarton,  1841, 
12  N.  H.  409;  s.  c.  1844,  15  N.  H.  201;  Bow  v.  Allenstown,  1857,  34 
N.  H.  351. 


NOVEMBER   TERM,  1807.  187 


Lewis  V.  Clagett. 


HILLSBOROUGH,   NOVEMBER   TERM,   1807. 


Asa  Lewis  and  Jesse  Abbot  v.  George  Clagett. 

Replevin  for  "  ninety-two  cribs  of  pine  boards."  Defendant  avowed  taking  tlie 
boards.     Description  held  fjood,  after  verdict. 

In  replevin,  defendant  avowed  attaching  the  goods  as  the  property  of  a  stranger, 
"  whose  property  they  were."  Plaintiffs  pleaded,  property  of  plaintiffs  and 
not  of  stranger.  Defendant  replied,  property  of  stranger.  Issue  on  stranger's 
property,  found  for  plaintiffs.  Held,  sufficient  to  warrant  judgment  for  plain- 
tiffs, although  the  declaration  did  not,  except  by  reference  to  the  writ,  allege 
property  of  plaintiffs. 

Writ  of  replevin  dated  Aug.  4.  Defendant  avowed  taking  on  Aug.  5.  After 
verdict  for  plaintiffs,  held,  that  mistaken  date  in  avowry  was  not  ground  for 
arresting  judgment. 

This  was  replevin,  for  taking  and  impounding  at  Derryfield, 
Aug.  4,  1806,  ninety-two  cribs  of  pine  boards,  value  $184. 
Writ  dated  Aug.  4,  1806  ;  served  Aug.  5,  1806. 

Avowry :  Jona.  Greeley  by  writ  attached  the  boards  (de- 
fendant, deputy  sheriff,  made  the  attachment)  as  the  property 
of  one  Samuel  Stevens,  whose  property  they  were;  this. at- 
tachment made  Aug.  5,  1806. 

Plea  :  the  property  of  plaintiffs,  and  not  the  property  of 
Stevens  ;  and  prays  return. 

Replication  :  the  property  of  Stevens.     Issue. 

At  the  last  Term  the  jury  found  a  verdict  for  plaintiffs, 
damages  $1. 

Motion  in  arrest  of  judgment. 

Jamieson,  for  plaintiff. 
Webster,  for  defendants. 

At  this  Term,  Smith,  C.  J.,  delivered  the  opinion  of  the 
Court. 

1.  [First  objection.]  The  property  not  sufficiently  de- 
scribed. 


188  HILLSBOROUGH. 


Lewis  V.  Clagett. 


It  is  clear  the  property  must  be  described  with  certainty  to 
a  general  intent.  6  G.  Bacon,  71 ;  Lawes,  57  ;  Butler,  53. 
This  perhaps  ill  on  special  demurrer,  but  it  is  sufficient  after 
veidict.  Defendant  has  avowed  taking  the  boards.  This 
cures  the  defect  in  the  description.  2  Sellon,  254 ;  2  Lil. 
353.  (a) 

2.  [Second  objection.]  There  cannot  be  judgment  for 
plaintiffs  on  this  verdict,  because  it  does  not  find,  as  it  ought, 
that  the  boards  were  the  property  of  the  plaintiffs,  but  only 
that  they  weie  not  the  property  of  Samuel  Stevens. 

Answer.  This  is  well  enough.  The  defendant  justifies  the 
taking  as  the  property  of  Samuel  Stevens.  He  does  not  plead 
property  in  a  stranger,  and  traverse  the  plaintiffs'  property,  as 
in  2  Lil.  358.  The  only  question  raised  by  the  defendant's 
plea  or  avowry  is  as  to  the  property  of  Samuel  Stevens,  and 
defendant's  lawful  taking  as  such.  Plaintiffs  deny  the  prop- 
erty of  Samuel  Stevens,  and  on  this  the  parties  are  at  issue. 
Defendant,  by  his  mode  of  pleadin'g,  admits  that,  if  the  prop- 
erty be  not  in  Samuel  Stevens,  he  had  no  right  to  intermed- 
dle. Defendant  might  have  denied  plaintiffs'  property,  and 
put  his  defence  solely  on  that  ground  ;  but  he  has  not  so  done. 
The  finding  of  the  jury  is  correct ;  they  have  found  the  matter 
in  issue.  And  the  pleadings  are  right.  If  they  are  not,  they 
are  such  as  the  defendant  chose  to  make  them  ;  and  he  cannot 
complain  if  the  plaintiffs  do  not  prove  what  they  have  not  been 
called  on  to  prove.  (6) 

3.  [Third  objection.]  Defendant  avows  taking  on  the  5th 
August.     The  writ  is  dated  the  4th. 

Answer.  The  plea  may  doubtless  be  amended  at  defend- 
ant's request.  But  certainly  it  is  not  competent  for  defendant 
to  insist  on  the  badness  of  his  avowry  in  arrest  of  judgment. 
A  party  shall  not  take  advantage  of  his  own  errors  in  pleading. 
Tidd,  828. 

(a)  See  all  the  learning  on  this  subject.  3  Selw.  1024;  2  Saund. 
74  6,  n.  1. 

{b)  If  property  in  Stevens  had  been  pleaded  in  abatement  (as  it  might 
have  been),  this,  if  found  against  him,  would,  it  seems,  warrant  a  judg- 
ment in  favor  of  plaintiff;  the  question  of  the  plaintiff's  property  could 
not  have  been  tried.     Lawes,  PI.  38. 


NOVEMBER   TERM,  1807.  189 

Lewis  V.  Clagett. 

4.  [Fourth  objection.]  The  decharation  in  replevin  does  not 
allege  property  in  the  plaintiffs.  The  writ  and  declaration 
ought  to  allege  that  the  goods  taken  were  the  property  of 
plaintiffs.     F.  N.  B.  loG  ;  2  Lil.  347,  348. 

Answer.  The  declaration  may  refer  to  the  writ  of  replevin. 
2  Lil.  353.  (a)  But  it  is  a  sufficient  answer  to  say  that  this, 
though  bad  on  demurrer,  is  good  after  verdict.  Qualified 
property  is  sufficient  for  plaintiffs.  3  Wooddes.  230.  In 
this  case  the  pleadings  put  plaintiffs'  property  out  of  the  case. 
It  is  admitted  by  the  form  of  pleading  that  judgment  must 
be  against  the  defendant,  if  the  property  be  not  in  Samuel 
Stevens.  Judgment  for  plaintiffs.^ 

(a)  It  is  conceived  this  does  so ;  it  is  admitted  to  be  so  by  defendant's 
counsel. 

^  I.  The  following  descriptions  in  replevin  have  been  held  sufficient :  — 

"Six  oxen."  Farwell  v.  Fox,  1869,  18  Mich.  166.  "One  white 
shoat,  of  the  value  of  S14."  Onstatt  v.  Ream,  1868,  30  Ind.  259. 
"  A  box  of  skin.s  and  furs,  marked  /.  Windoes,  Logansport,  Indiana." 
Minchrod  v.  Windoes,  1868,  29  Ind.  288.  "  The  goods  and  chattels  fol- 
lowing, viz.:  the  contents  of  a  grocery  store,  so  called,"  describing  the 
store,  and  naming  the  person  by  whom  the  goods  are  "  now  taken  and 
held."  Litchman  v.  Potter,  1874,  116  Mass.  371.  All  the  "  goods,  stock, 
and  fixtures  in  store  at  Johnston,  at  a  place  called  Dry  Brook,  occupied 
by  said  L..  of  the  value  of  S8()0,  and  books  of  account  and  evidence 
of  indebtedness,  showing  indebtedness  of  persons  to  said  Leach,  of  the 
value  of  S50."  Waldron  v.  Leach,  1870,  9  R.  I.  588.  "  A  certain  store- 
house—  warehouse  —  and  the  goods  therein  contained,  being  the  store 
in  Council  Bluffs,  in  said  State  and  County,  and  known  and  designated 
as  the  store  of  your  petitioner."  Ellsworth  v.  Henshall,  1854,  4  Greene, 
417. 

Whether  "fifteen  hundred  pounds  of  seed  cotton"  is  a  sufficient  de- 
scription, qucere.     Hill  /.  Robinson,  1855,  16  Ark.  90. 

"  A  quantity  of  corn  (consisting  of  about  two  hundred  bushels),  and  a 
quantity  of  rye  (consisting  of  about  one  hundred  bushels),"  held  insuffi- 
cient on  demurrer.      Stevens  v.  Osman,'  1848,  1  Mich.  92. 

"  Plaintiff's  goods  and  chattels,  which  the  defendant  took  and  unjustly 
detains,"  htld  bad,  and  writ  quashed  after  appearance  entered.  Snedeker 
V.  Quick,  1829,  6  llalst.  (N.  J.)  179. 

Declaration,  that  defendant,  in  a  "certain  dwelling-house,  took  divers 
goods  and   chaittels   of   the   plaintiff."     Final   judgment   arrested,    after 


190  HILLSBOROUGH. 

Lewis  V.  Clagett. 

default,  and  writ  of  inquiry  executed.  Pope  v.  Tillman,  1817,  7  Taunt. 
U42. 

In  De  Witt  V.  Morris,  1835,  13  Wend.  496,  Nklson,  J.,  said  that  the 
sherifE  should  refuse  to  execute  a  writ  of  replevin  for  "  goods  and  chat- 
tels, to  wit,  about  four  hundred  tons  of  iron  ore,  commonly  called  bog 
ore." 

An  insufficient  description  may  be  held  good  after  avowry,  or  after 
the  defendant  has  interposed  "a  claim  property  bond,"  and  kept  the 
goods.  Banks  v.  Angdl,  1838,  7  Ad.  &  E.  843;  Warner  v.  Aughenbaugh, 
1826,  15  Serg.  &  R.  9  ;  Ruch  v.  Morris,  1857,  28  Pa.  St.  245. 

After  trial  and  verdict  for  defendant,  plaintiff  cannot  object  that  the 
property  is  not  described  with  sufficient  certainty  in  his  own  declaration. 
Wilson  V.  Gray,  1839,  8  Watts,  25. 

See  further,  as  to  sufficiency  of  description,  Bronson,  J.,  in  Root  v. 
Woodruff,  1844,  6  Hill,  418,  423,  424;  and  old  authorities  cited  in  Mr. 
McMurtrle's  argument,  28  Pa.  St.  247. 

As  to  the  sufficiency  of  a  description  in  detinue,  see  Brown  v.  Ellison, 
1875,  55  N.  H.  556. 

II.  According  to  the  views  expressed  by  Bell,  J.,  in  Dickinson  v. 
Lovell,  1857,  35  N.  H.  9,  19,  20,  the  pleadings  ought  to  have  been  so 
framed  as  to  have  resulted  in  an  issue  on  the  plaintiff's  property.  And  if 
such  had  been  the  issue,  a  verdict  that  the  goods  were  not  the  property  of 
S.  S.  would  have  been  bad,  because  it  did  not  find  the  issue  submitted. 
Bemus  v.  Beekman,  1829,  3  Wend.  667. 

But,  because  the  plaintiff  might  have  successfully  demurred  to  the  issue 
tendered  by  the  defendant,  it  does  not  necessarily  follow  that  the  plaintiff, 
after  prevailing  on  the  issue  thus  tendered,  cannot  have  judgment;  nor  is 
this  point  decided  in  any  of  the  cases  cited  by  Judge  Bell,  on  pp.  19  and 
20,  in  Dickinson  v.  Lovell. 

The  view  of  the  Court  in  Lewis  v.  Clagett,  as  to  the  admission  to  be  im- 
plied from  the  defendant's  pleadings,  seems  sustained  by  the  following 
lano-uage  of  Wilde,  C.  J.,  in  Coullng  v.  Coxe,  1848,  6  M.  G.  &  S.  703, 
721:  "  .  .  .  A  plea  traversing  an  allegation  in  a  declaration,  although 
not,  for  all  purposes  nor  in  all  events,  an  admission  of  the  material  allega- 
tions in  the  declaration  which  it  does  not  traverse,  yet  may  be  considered 
as  a  conditional  admission,  that  is,  as  admitting  the  allegation  not  traversed, 
in  case  the  plaintiff  can  prove  the  allegation  traversed;  and  it  is  certainly 
so  treated  in  the  case  in  which,  on  a  single  plea  traversing  a  part  of  the 
declaration,  where  an  issue  is  found  for  the  plaintiff,  the  plaintiff"  has 
judgment  —  which  he  would  not  be  entitled  to,  unless  the  Court  con- 
sidered the  material  allegations  which  were  not  traversed,  as  being  ad- 
mitted." 

Upon  these  principles,  it  might  be  said  that  the  defendant,  by  his  form 
of  pleading,  admitted  the  property  to  be  in  the  plaintiffs,  in  case  the  jury 
should  find  that  it  was  not  in  Stevens;  and  that  the  subsequent  verdict 


FEBRUARY   TERM,  1808.  191 


Currier  v.  Basset. 


ROCKINGHAM,   FEBRUARY  TERM,   1808. 


Dudley   Cukrier  v.  John  Basset  et  al. 

Towns  may  agree  on  divisional  lines,  as  far  as  respects  jurisdiction. 

The  towns  of  A.  and  S.,  to  settle  a  disputed  line  between  them,  submitted  the 

matter  to  arbitration,  and  afterwards  ratified  the  doings  of  the  arbitrators. 

According  to  the  line  thus  established,  the  residence  of  C.  would  be  in  A. 

Subsequently,  C.  sued  the  selectmen  of  A.  for  illegally  assessing  liim,  and 

offered  to  show  that  the  true  charter  line  differed  from  the  agreed  line,  and 

that,  by  the  true  line,  his  residence  would  be  in  S. 
Held,  that  this  evidence  could  not  be  received,  the  establishment  of  the  agreed 

line  being  conclusive. 

This  was  trespass  for  an  illegal  assessment,  made  by  defend- 
ants as  selectmen  of  Atkinson,  Jan.  1,  1803. 

Defendants  justified  as  selectmen  and  assessors  ;  the  plaintiff 
an  inhabitant  of  Atkinson,  and  lawfully  assessed  as  such. 

Replication  traverses  plaintiff  being  an  inhabitant  of  Atkin- 
son. 

Rejoinder  takes  issue  on  the  traverse. 

(that  the  property  was  not  in  Stevens)  made  this  conditional  admission 
absolute. 

A  repleader,  for  the  immateriality  of  the  issue,  will  not  be  granted  on 
the  motion  of  that  party  who  committed  the  first  substantial  fault  in 
pleading  which  occasioned  the  immaterial  issue,  and  who  himself  tendered 
the  issue.  Here  it  would  seem  that  the  defendant  is  that  party.  "  And 
therefore,  if  the  verdict  is  against  him,  judgment  must  also  regularly  go 
against  him.  For,  as  the  fault  in  the  issue  commenced  on  his  part, — his 
traverse  being  bad  in  law ;  and  it  being,  moreover,  found  to  be  false  in 
fact ;  it  is  deemed  unreasonable  to  grant  him  the  indulgence  of  a  repleader. ' ' 
Gould,  R.  c.  10,  §  32. 

If,  upon  the  other  hand,  the  plaintiffs  are  regarded  as  committing  the 
first  substantial  fault  in  pleading,  still  the  issue  was  so  framed  that  a  ver- 
dict upon  it  in  favor  of  the  defendant  would  have  been  decisive  of  the 
merits  of  the  cause.  Under  the  statute  ;i2  H.  VIII.  c.  30,  perhaps  such 
an  issue  is  "  aided  by  a  verdict  either  way."     See  Gould,  PI.  c.  10,  §  31. 


192  ROCKINGHAM. 


Currier  v.  Basset. 


This  action  was  tried  at  September  Term,  1806  ;  when  a 
verdict  was  taken  for  defendant,  subject  to  tlie  opinion  of  the 
Court,  whether  the  evidence  adduced  and  used  on  the  trial,  on 
the  part  of  the  defendants,  to  prove  that  plaintiff  was,  at  the 
time,  an  inhabitant  of  Atkinson,  was  conclusive  evidence  of  the 
fact,  so  as  to  preclude  the  evidence  offered  by  plaintiff. 

It  appeared  in  evidence  that  Atkinson  contained  the 
westerly  part  of  a  township  granted  and  incorporated  in  1749- 
1750,  by  the  name  of  Plastow  ;  and  that  Salem  bounds  on 
Atkinson  west  line.  By  the  charter  it  appears  that  the  bound 
on  the  State  line  is  a  monument  near  Captain's  Pond,  so  called, 
and  on  the  northerly  side  a  black  oak,  south-east  corner  of 
Londonderry  ;  and  the  course,  by  the  charter,  from  the  oak  is 
south  25*^  east.  The  monument  in  the  State  line  is  agreed  on, 
and  the  place  of  the  oak  mentioned  in  the  charter  is  dis- 
puted. 

To  settle  this  line,  the  towns  of  Atkinson  and  Salem  agreed 
to  submit  the  matter  to  arbitration  ;  and,  on  Nov.  20,  1799, 
the  arbitrators  made  an  award,  "  that  the  twin  oak  tree  with 
the  stones  about  it  is  the  south-east  corner  bound  of  London- 
derry, and  is  a  bound  between  Atkinson  and  Salem  ;  but,  in 
case,  on  some  future  perambulation,  the  said  twin  oak  tree 
should  not  be  considered  as  the  south-east  corner  bound  of 
Londonderry,  agreeably  to  their  present  charter,  then  the 
bounds  between  the  said  towns  of  Atkinson  and  Salem  shall 
be  altered  agreeably  to  the  bounds  which  may  be  estai)lished 
between  the  towns  of  Londonderry  and  Atkinson  ;  but,  until 
such  alteration  is  made  and  agreed  to,  the  said  twin  oak  shall  be 
considered  as  the  bound  between  said  towns  of  Atkinson  and 
Salem;  and  the  bound  near  the  Captain's  Pond  shall  be  twenty- 
five  rods  westerly,  as  the  State  line  runs,  from  the  stake  and 
stones  on  B.  Emery's  land,  shown  us  by  committee  of  Salem  ; 
and  tliat  a  straight  line  from  the  twin  oak  to  the  bound  affixed 
by  us  shall  be  considered  as  the  dividing  line  between  said  towns 
of  Atkinson  and  Salem,  until  some  alteration  shall  be  made, 
as  aforementioned,  in  the  south-east  corner  bound  of  London- 
derry, when  a  straight  line  from  the  bound  which  may  here- 
after be  established  according  to  their  present  charter  to   the 


FEBRUARY   TERM,  1808.  193 

Currier  v.  Basset. 

bound  aflBxed   by  us   near  the   Captain's  Pond  shall  be  the 
divisional  line  between  said  towns. 

Each  of  these  towns,  —  Atkinson  and  Salem, —  at  a  legal 
meeting,  has  ratified,  accepted,  and  confirmed  the  doings  of 
the  arbitrators. 

By  this  line,  plaintiff  lives  in  Atkinson,  and  the  tax  is 
legal. 

There  has  been  no  agreement  between  Londonderry  and 
Atkinson  as  to  altering  the  corner  (the  twin  oak),  nor  any 
act  of  Londonderry,  showing  that  the  twin  oak  is  not  the  cor- 
ner, —  no  other  place  established  as  south-east  corner.  But  the 
plaintiff  contended  that  the  twin  oak  could  now  be  shown  in 
evidence  not  to  be  the  true  south-east  corner  of  Londonderry 
by  their  charter.  The  plaintiff  contends  that  the  black  oak 
mentioned  in  the  charter  is  sixty  rods  westerly  of  the  twin  oak 
established  by  the  arbitrators  ;  and,  if  this  be  so,  it  is  agreed,  a 
line  running  to  the  State  line,  the  course  mentioned  in  the 
charter,  will  leave  Currier  in  Salem.  There  is,  in  this  place, 
about  twelve  rods  between  the  two  lines. 

Plastow  was  granted  before  Salem,  and  Londonderry  before 
Plastow. 

It  does  not  appear  that  Salem  has,  as  a  town,  done  any 
thing  in  this  matter  since  acceptance  of  the  award. 

The  plaintiff  now  offered  evidence  to  prove  that  the  black 
oak  mentioned  in  the  charter  of  Londonderry  was  sixty  rods 
westerly  of  the  twin  oak  established  by  the  award.  This  evi- 
dence was  rejected  by  the  Court ;  and  the  single  question 
now,  for  the  opinion  of  the  Court,  is,  whether  that  decision 
was  correct. 

Betton  and  Mason,  for  plaintiff. 

Varnum,  for  defendants  (and,  as  it  is  believed,  Sullivan). 

The  opinion  of  the  Court  was  now  delivered  by  Smith,  C.  J. 

After  stating  the  case  and  the  question,  he  observed  that 
the  Court  had  no  doubt  as  to  the  right  of  towns  to  agree  on 
divisional  lines,  as  far  as  respected  jurisdiction.  A  perambula- 
tion is  the  renewing  of  old  bounds  ;  but  there  may  be  instances 

18 


194  ROCKINGHAM. 


Currier  v.  Basset. 


where  no  old  line  can  be  traced  ;  in  such  case,  the  selectmen 
doubtless  may  make  marks. 

But  this  is  something  more.  In  case  of  dispute  between 
corporations  respecting  lines  of  jurisdiction,  they  may  settle 
such  disputes  ;  otherwise  they  must  live  for  ever  in  a  broil. 
A  court  of  law  cannot  establish  the  line,  but  only  declare,  in 
particular  cases,  where  it  is.  The  legislature  can,  no  doubt, 
alter  and  establish  such  lines  at  their  pleasure ;  (a)  such  has 
been  the  practice.  And  this  is  an  answer  to  the  hardship  com- 
plained of  in  this  case,  tliat  an  individual  may,  in  this  way,  be 
unjustly  removed  from  one  corporation  and  made  subject  to 
another.     He  may  appeal  to  the  legislature. 

There  is  no  reason  to  apprehend  that  one  town  will  surren- 
der a  portion  of  its  territory  and  jurisdiction  to  another.  No 
alteration  can  be  made  without  the  consent  of  the  majority 
of  both  corporations.  Certainly  towns  possess  many  powers 
more  liable  to  abuse  than  that  of  settling  disputes  about  lines. 
Indeed,  it  is  generally  of  far  more  consequence  tliat  such  dis- 
putes be  settled  than  how  they  are  settled. 

In  the  present  case,  Atkinson  and  Salem  have,  by  the  inter- 
vention of  arbitrators,  established  a  line  between  them.  But 
it  is  said  this  was  only  for  a  time.  It  is  sufficient,  if  it  was 
established  when  the  present  assessment  was  made. 

According  to  any  fair  construction  of  the  award,  it  is  now 
binding.  The  twin  oak  is  a  bound  between  Atkinson  and 
Salem.  It  is  said  that,  in  case,  on  some  future  perambula- 
tion, the  twin  oak  should  not  be  considered  as  the  south-east 
corner  bound  of  Londonderry,  then  the  line  now  established 
shall  be  altered,  and  made  conformable  to  the  bound  established 
between  Londonderry  and  Atkinson.  Before  the  line  estab- 
lished by  the  award  ceases  to  be  the  divisional  line,  the  twin 
oak  must  cease  to  be  considered  as  the  south-east  corner  of 
Londonderry.  It  must  cease  to  be  considered  as  the  true  cor- 
ner by  Londonderry  ;  by  Londonderry  and  Atkinson  ;  or  by 
Londonderry,  Atkinson,  and  Salem.  It  does  not  appear  that 
it  has  ceased  to  be  considered  as  the  true  corner  by  any  per- 

(o)  N.  H.  Laws,  ed.  1797,  178-180;  ed.  1805,  195,  204. 


FEBRUARY   TERM,  1808.  195 


Currier  v.  Basset. 


son,  except  Currier,  the  plaintiff.  The  true  meaning  of  the 
award  seems  to  be  this — that  if,  on  a  perambulation  by 
Atkinson  and  Salem,  they  should  agree  on  a  corner  other  than 
the  twin  oak,  or  in  case  Atkinson  and  Londonderry  should 
agree  on  another  corner,  and  establish  it,  then  the  line  now 
established  is  to  be  altered  accordingly. 

If  the  defendants  had  recognized  any  other  line  than  that 
established  in  1799  as  the  dividing  line  between  Atkinson  and 
Salem,  they  would  have  wilfully  erred.  The  selectmen  are 
bound  to  regard  the  line  established  by  the  towns,  —  the  line 
•which  has  been  considered  in  fact  as  the  true  line,  though 
never  established. 

It  may  well  be  doubted  whether,  in  case  no  line  had  been 
established,  but  there  were  proof  that,  for  more  than  twenty 
years,  each  town  had  ever  used  jurisdiction  to  a  certain  line, 
any  evidence  ought  to  be  admitted,  in  an  action  of  this  sort, 
to  show  where  the  line  actually  is.  This  case  is  stronger  than 
that.  Here  the  towns  have  established  a  line.  Till  that  is 
altered,  the  towns,  and  every  individual  in  each,  are  bound  by 
it.  If  either  town,  or  any  individual,  is  dissatisfied,  they 
must  appl}'  to  the  legislature. 

The  evidence  given  by  defendants  is  conclusive  evidence  of 
the  line,  till  altered  by  the  legislature  or  in  the  way  pointed 
out  in  the  award.  It  has  not  been  altered  in  any  way,  and 
therefore  the  evidence  offered  by  plaintiff  was  properly  re- 
jected. Judgment  for  defendants,^ 

1  Proprietors  of  adjoining  townships  were  competent  to  settle  the 
boundary  line  between  them.  Richardson,  C.  J.,  in  Proprietors  of 
Enfield  V.  Day,   1835,  7  N.   H.   457,  467,  468. 

As  to  power  of  selectmen  to  agree,  in  case  of  a  disputed  hne,  see 
Richardson,  C.  J.,  Gorrill  v.  Whitlier,  1825,  3  N.  H.  265,  267,  268; 
Gilchrist,  J.,  in  Bailey  v.  Rolfe,  1844,  16  N.  H.  247,  251,  252;  Henniker 
V.  Hopkinton,  1846,  18  N.  H.  98,  101;  Sawyer,  J.,  in  Pitman  v.  Albany, 
1857,  34  N.  H.  577,  580,  581;  Gushing,  C.  J.,  in  Greenville  v.  Mason, 
1876,  57  N.  H.  385,  392. 

By  statute  of  Dec.  23,  1820,  provision  is  made  for  the  settlement  of  the 
line  by  a  court,  in  case  of  disagreement  of  the  selectmen;  the  judgment 
of  the  court  to  be  "  of  the  same  force  and  effect  as  would  have  been 
the  agreement  of  the  selectmen."     Laws  of  1820,  c.  85;  Gorrill  v.  Whittier, 


196  ROCKINGHAM. 


Currier  v.  Basset. 


1825,  3  N.  H.  265;  Laicrence  v.  Ilaynes,  1829,5  N.  II.  33.  In  the  Revised 
Statutes  of  1842,  it  was  enacted  that  the  decision  of  the  court  should  be 
final.  Rev.  Stat.  c.  37,  §  0;  Gen.  Laws,  c.  51,  §  6.  A  judgment  under  this 
statute  is  conclusive  upon  the  parties  in  a  suit  against  one  of  the  towns, 
pending  when  the  judgment  was  rendered.  Pitman  v.  Albany,  1857, 
34  N.  II.  577.  The  jurisdiction  of  the  court  to  settle  disputed  lines  is 
not  confined  to  cases  where  lines  have  been  previously  run  and  marked. 
Chatham's  Petition,  1846,  18  N.  H.  227.  As  to  matters  of  practice  under 
the  statute,  see  Boscaiom  v.  Canterbury,  1851,  23  N.  H.  188;  25  N.  H.  225. 

Perambulations  by  selectmen  are  evidence  in  suits  between  individuals, 
whose  lots  are  bounded  by  the  town  lines.  Lawrence  v.  Haynes,  1829, 
5  N.  H.  33;  Adams  v.  Stanyan,  1852,  24  N.  H.  405  (but  see  Bailey  v. 
Rolfe,  1814,  16  N.  H.  247).  They  are  not  conclusive.  Sawyer,  J.,  in 
Pitman  v.  Albany,  ubi  sup.  581;  and  see  Greenville  v.  Mason,  uhi  sup. 

If  a  line  has  been  treated,  for  more  than  fifty  years,  as  the  correct  one 
between  the  towns,  it  must  be  regarded  as  the  true  jurisdictional  line, 
notwithstanding  it  differs  from  the  calls  of  the  charter:  Hanson  v.  Russell, 
1853,  28  N.  H.  HI  ;  but  a  jurisdictional  line  thus  established  does  not 
necessarily  control  the  rights  of  private  property  :  Eastman,  J.,  in 
Hanson  v.  Russell,  117.  (See  Wells  v.  Jackson  Iron  Co.,  1869,  48  N.  H. 
491,  538.)  The  fact  that  a  certain  part  of  a  highway  has  for  several 
years  been  treated  by  both  the  towns  of  A.  and  E.  as  being  within  the 
limits  of  E.  is  not  conclusive  evidence  in  favor  of  A.,  in  a  suit  by  an 
individual  against  that  town,  founded  upon  an  alleged  defect  in  that  part 
of  the  highway.  Pitman  y.  Albany,  1854,  29  N.  H.  575.  But  if  a  town 
has  exercised  exclusive  jurisdiction  over  a  particular  tract  of  land  during 
the  residence  of  an  alleged  pauper  upon  it,  such  town  cannot  afterwards 
be  permitted  to  allege,  in  a  settlement  case,  that  the  place  of  the  pauper's 
residence  was,  in  fact,  in  another  town.  Plastow  v.  Kingstown,  reported 
post;  Northwoodv.  Durham,  1820,  2  N.  H.  242. 

As  to  correction  by  the  legislature  of  a  mistake  in  the  charter  bounda- 
ries, see  Proprietors  of  Enfield  v.  Permit,  1830,  5  N.  H.  280;  s.  c.  1837, 
8  N.  H.  512  (and  see  Proprietors  of  Enfield  v.  Day,  1835,  7  N.  H.  457). 


FEBRUARY   TERM,  1808.  197 


Reynolds  v.  Libbey. 


STRAFFORD,    FEBRUARY   TERM,  1808. 


Daniel  Reynolds  v.  Benjamin  Libbey,  et  e  contra. 

R.  sued  L.  on  a  promissory  note.  L.  pleaded  tender  of  debt  and  costs,  after  suit 
commenced,  to  R.'s  attorney.  Replication,  that  L.,  after  the  commencement 
of  R.'s  suit,  and  before  the  tender,  had  sued  R.  in  assumpsit,  and  that  R.  in- 
tended, after  that  suit  commenced,  to  have  set  off  this  note  against  that  suit. 

Held,  that  the  replication  was  bad;  and  that,  under  the  statute  of  Dec.  13,  1796, 
the  tender  discharged  the  note,  so  that  it  could  not  be  pleaded  in  offset  to  L.'s 
suit. 

Assumpsit  on  promissory  note,  made  by  defendant  to  plain- 
tiff, for  $100,  date  Feb.  20,  1806,  payable  in  six  months,  with 
interest.  Indorsed,  Sept.  17,  1806,  |20  ;  Oct.  20,  1806,  $45. 
Writ :  date  Oct.  27, 1806  ;  service  Nov.  6, 1806. 

Defendant  pleaded,  that  at  C.  C.  P.,  Jan.  16,  1807,  since 
commencement  of  this  suit,  defendant  made  application  to 
J.  H.  W.,  plaintiff's  attorney,  who  brought  this  action,  and 
offered  to  pay  and  actually  tendered  to  the  said  W.  the  full 
amount  of  the  debt  and  lawful  cost  which  had  then  arisen, 
viz.  $39.53  for  debt  and  $3.47  for  costs  ;  which  sums  said  W. 
refused  to  receive  ;  defendant  ever  since  ready  to  pay  plain- 
tiff and  his  attorney  these  sums,  and  now  brings  the  same 
into  court,  ready  to  be  paid  to  the  plaintiff  or  his  said  attorney, 
if  they  will  receive  the  same  ;  and  this  he  is  ready  to  verify  ; 
wherefore  he  prays  judgment,  if  the  said  Reynolds  shall  further 
have  and  maintain  his  action  aforesaid  against  him. 

At  February  Term,  1807  (March  3),  plaintiff  replied, 
admitting  the  tender  as  stated,  that,  after  commencement  of 
plaintiff's  suit  and  before  the  tender,  viz.  Nov.  7,  1806,  defend- 
ant commenced  a  suit  against  the  plaintiff,  declaring  in  as- 
sumpsit on  account  annexed  to  the  writ  for  $41.33 ;  this  writ 
was  served  Nov.  20,  1806,  and  entered  at  C.  C.  P.  third  Tues- 
day of  January,   1807,  and    the    action   is    now   pending   by 


198  STRAFFORD. 


Reynolds  v.  Libbey. 


appeal  in  this  court ;  the  said  Benjamin  Libbey,  at  the  com- 
mencement of  his  said  suit,  being,  and  ever  since  remaining, 
justly  indebted  to  the  plaintiff  in  the  full  contents  of  said 
promissory  note ;  which  said  promissory  note  the  plaintiff 
intended,  after  defendant  commenced  his  suit  as  aforesaid,  to 
set  off  against  defendant's  demand  in  his  said  suit,  and  has 
done  so  accordingly ;  and  this  he  is  ready  to  verify,  &c. 
Demurrer,  and  joinder. 

The  other  action,  Lihhey  v.  Reynolds^  spoken  of  in  the 
defendant's  plea,  came  on  to  trial  at  February  Term,  1807, 
wlien  the  jury  did  not  agree.  At  September  Term,  verdict 
was  for  plaintiff,  123.23.  The  note  mentioned  in  the  action 
Reynolds  v.  Libbey  was  pleaded  by  way  of  set-off;  but,  on  its 
being  admitted  by  Reynolds's  counsel  that  tender  had  been 
made,  as  stated  in  the  plea  in  Reynolds  v.  Libbey^  the  Court 
expressed  an  opinion  for  the  present,  that  tlie  set-off  could  not 
be  maintained,  and  recommended  that  it  be  withdrawn  ;  and 
motion  was  now  made  for  a  new  trial  in  that  action,  and  that 
the  set-off  may  be  admitted  to  go  to  the  jury. 

[Jeremiah  H.    Woodman^  for  Reynolds. 
Joseph  Tilton  and  N.  Emery,  for  Libbey.] 

The  opinion  of  the  Court  in  both  actions  was  now  delivered 
by  Smith,  C.  J.,  after  stating  the  pleadings  and  the  latter 
case. 

Inasmuch  as  Reynolds's  suit  was  first  commenced,  Libbey 
ought  to  have  pleaded  his  demand  by  way  of  set-off;  then  the 
costs  would  have  fallen  on  the  debtor.  This  is  on  the  presump- 
tion that  there  was  no  dispute  respecting  the  justice  of  either 
demand.  It  seems  there  is  none  respecting  Reynolds's  de- 
mand. But,  if  Reynolds  denied  the  justice  of  Libbey's  demand, 
it  is  not  unreasonable  that  Libbey  should  do  any  act  in  his 
power  to  make  the  costs  of  prosecuting  it  fall  on  Reynolds, 
if  any  thing  should  be  recovered.  But  these  are  considera- 
tions which  can  in  no  way  influence  our  judgment  in  the 
first  action,  nor,  perhaps,  in  the  second. 


FEBRUARY   TERM,  1808.  199 

Reynolds  v.  Libbey. 

By  the  replication  it  appears  that  the  only  objection  to  the 
tender  is,  that  the  plaintiif,  Reynolds,  is  thereby  dei)rived  of 
an  opportunity  of  pleading  the  demand  which  lie  had  then 
sued  by  way  of  set-off  to  the  suit  Libbey  had  then  commenced 
against  him.  Reynolds's  demand  having  been  sued,  he  was 
not,  on  that  account,  precluded  from  setting  it  off.  Brown  v. 
Baskerville,  2  Burr.  1229  ;  3  T.  R.  186.  As  this  matter  of 
defence  arises  after  action  brought,  it  cannot  be  pleaded  in 
bar  of  the  action  generally  ;  but  only  a  bar  to  further  proceed- 
ings. 4  East,  507  ;  3  T.  R.  186  ;  1  Seh. .  US,  n.  ;  Statutes, 
ed.  1805,  96.  It  is  so  pleaded  in  this  case  ;  anJ  the  whole 
sum,  the  amount  of  the  debt,  is  tendered.  It  seems,  there- 
fore, clear  that,  by  the  statute  ^  which  authorizes  this  tender, 
it  is  good  ;  and  the  defendant,  Libbey,  must  have  judgment 
for  his  costs  ;  and  plaintiff,  Reynolds,  may  have  the  money 
tendered,  and  which  has  been  brought  into  court.  Reynolds's 
attorney  should  have  accepted  the  money  tendered,  and  Rey- 
nold."-  should  not  have  entered  his  action,  but  might  immedi- 
al'.y  have  tendered  it  to  Libbey  for  his  demand,  or  might 
have  brought  it  into  court.  The  only  inconvenience  attend- 
ing this  course  would  be  that  Reynolds  would  be  compelled  to 
pay  the  cost  which  had  accrued  before  the  tender,  or  payment 
of  money  into  court.  If  Libbey's  demand  were  unjust,  then 
there  can  be  no  well-founded  objection  to  this  tender  ;  because 
then  no  tender  or  offset  would  be  necessar}'  on  Reynolds's  part. 

1  An  act  in  addition  to  an  act,  entitled,  "An  Act  regulating  Process 
and  Trials  in  Q,\\\\  Causes." 

Whereas,  in  said  act,  there  is  no  mode  provided,  after  the  service  of  a 
writ,  and  before  trial,  whereby  the  defendant  can  oblige  the  plaintiff  to 
settle  his  action,  which  tends  greatly  to  increase  the  cost  in  civil  causes. 

For  remedy  whereof, 

Be  it  enacted  by  the  Senate  and  House  of  Representatives,  in  General 
Court  convened.  That,  at  any  time  before  the  sitting  of  any  court,  to 
which  any  writ  shall  be  returnable,  or  at  any  time  before  judgment  shall 
be  rendered  thereon,  any  defendant  who  shall  make  application  to  the 
plaintiff's  attorney,  who  brought  the  action,  and  actually  tender  to  him 
the  amount  of  the  debt  and  the  lawful  costs  that  may  have  arisen,  such 
tender  shall  be  a  bar  to  any  further  process,  any  usage  or  custom  to  the 
contrary  notwithstanding. 

Approved  Dec.  13,  1796. 

Compare  Gen.  Laws,  c.  227,  §  1. 


200  STRAFFORD. 


Reynolds  v.  Libbey. 


The  statute  respecting  tenders  to  attorneys  seems  to  have 
made  no  exception  of  demands  where  it  would  be  better  for 
the  creditor  not  to  liave  than  to  have  his  money.  If  the 
debtor  will  pay  the  whole  demand,  in  all  cases  he  may  tender 
to  the  attorney.  If  Reynolds  had  not  sued  the  note,  but 
Libbey  had  first  sued  his  account,  Libbey,  at  common  law, 
might  have  paid  the  note  or  tendered  to  the  party  the  amount 
due.  If  Reynolds  had  afterwards  sued,  such  tender  would  be 
a  good  bar.  So,  if  Reynolds  had  pleaded  it  by  way  of  set-off, 
the  tender  would  have  been  a  good  bar  to  the  set-off.  The 
statute  seems  to  have  given  precisely  the  same  effect  to  a  ten- 
der after  suit  commenced  as  before,  and  to  attorney  as  well  as 
to  the  party.  On  this  suit,  therefore,  Libbey  must  have  judg- 
ment for  his  costs;  the  replication  being  bad. 

The  next  question  is,  whether  Reynolds  is  entitled  to  avail 
himself  of  the  note,  notwithstanding  the  tender,  by  way  of 
set-off  to  Libbey's  demand  in  the  second  suit. 

To  entitle  Reynolds  to  set  off  the  note  in  this  case  against 
Libbey's  account,  it  must  be  a  debt  due  from  Libbey  to  Rey- 
nolds at  the  time  of  set-off  pleaded,  and  recoverable  by  suit 
at  law  ;  it  must  also  have  been  justly  due  and  accruing  to 
Reynolds  at  the  time  Libbey  commenced  his  suit.  Statutes, 
ed.  1805,  141.  Now,  when  this  set-off  was  pleaded,  there 
was  no  debt  due  from  Libbey  to  Reynolds ;  the  proceeding 
which  had  taken  place,  i.  e.  the  tender  to  the  attorney,  by  the 
statute,  had  barred  any  further  process  or  proceeding.  Laws, 
ed.  1805,  96.  Reynolds  could  not  lawfully  proceed  in  the  suit 
commenced  ;  he  could  not  discontinue  that  and  commence 
another  action  ;  he  could  not  avail  himself  of  the  demand  in 
any  other  way.  To  plead  it  by  way  of  set-off  is  process  or 
proceeding  on  the  note  ;  it  is  still  considering  it  and  treating 
it  as  a  debt  due  him.  Libbey  had  appropriated  the  money 
tendered  to  the  payment  of  the  note  ;  and,  by  entering  the 
action  on  the  note,  Reynolds  made  it  the  duty  of  Libbey  to 
bring  the  mone}''  into  court  and  have  it  ready  to  bar  the  action 
or  further  proceeding  in  it.  After  having  done  this,  Reynolds 
cannot  treat  all  this  as  a  nullity,  and  compel  Libbey  to  pay 


FEBRUARY   TERM,  1808.  201 

Reynolds  v.  Libbey. 

the  debt  in  another  and  different  way.  The  money  tendered 
has  become  the  property  of  Reynolds  at  his  election,  Libbey 
has  no  longer  any  control  over  it.  If  he  exercises  any  such 
control,  he  destroys  the  tender.  Reynolds  can  take  the 
money  out  of  court,  and  tender  it  in  Libbey's  action,  or  bring 
it  into  court ;  i.  g.,  he  may  elect  to  receive  it  in  the  action  on 
the  note,  and  obtain  a  rule  to  have  it  considered  as  so  much 
brought  into  court  on  Libbey's  action  against  him.  But  this 
does  not  amount  to  that.  Here  he  pleads  the  note  as  a 
set-off. 

From  the  case  of  Evans  v.  Prosser,  3  T.  R.  186,  it  would 
seem  that  a  tender  by  Libbey,  after  Reynolds  had  ])leaded  the 
note  by  way  of  set-off,  would  not  do  away  with  the  set-off. 
And  this  is  reasonable. 

Under  the  circumstances  of  this  case,  Reynolds  suffered  no 
injury  by  following  the  advice  of  the  Court  in  withdrawing 
his  set-off.  It  would  not  have  availed  him  if  it  had  remained 
in  the  case.  And^  therefore,  judgment  must  be  entered  on  the 
verdict.^ 

'  A  suit  having  been  brought  upon  a  note,  the  defendant  paid  into 
court  the  amount  of  the  debt  and  costs.  The  phiintiff  took  tlie  money 
out  of  court,  but  decHned  accepting  it  in  satisfaction  of  his  claim,  because 
he  had  filed  the  note  as  a  set-off  in  a  suit  which  the  defendant  had  brought 
against  him.  Held,  that  the  note  was  paid,  and  that  it  could  not  be  used 
as  a  set-off.  Molinetix  v.  Eastman,  1843,  14  N.  H.  504.  "  To  be  a  proper 
matter  for  offset,  a  claim  must  not  only  be  due  and  actionable  when  the 
suit  was  commenced,  but  it  must  continue  so  to  the  time  of  the  trial  and 
verdict."  If  a  note  held  by  defendant  against  plaintiff  at  the  date  of 
plaintiff's  writ,  afterwards,  during  the  pendency  of  plaintiff's  action,  passes 
into  judgment,  it  ceases  to  be  a  proper  matter  of  set-off.  Andrews  v. 
Varrell,  1865,  46  N.  H.  17. 

A  defendant  cannot  file  the  same  matter  in  set-off  in  two  separate 
actions  pending  against  him  at  the  .same  time.  Chase  v.  Strain,  1844, 
15  N.  H.  535.  Each  item  in  an  accomit  is  a  separate  claim;  and  hence 
filing  all  the  items  except  one,  in  set-off,  in  a  suit  in  which  judgment  was 
rendered  upon  the  merits,  does  not  prevent  the  creditor  from  prosecuting 
an  action  upon  the  item  not  filed.  Bai/e//  v.  O'Connor,  1848,  10  N.  II. 
202.  But  a  judgment,  being  entire,  cannot  be  divided,  and  a  part  filed  in 
offset  and  the  other  left  out.  Saugent,  J.,  in  Andrews  v.  Varrell,  ubi 
sup.  21;  and  see  Chase  v.  Strain,  ubi  sup. 


202  STRAFFORD. 


Frost  D.  Chesley. 


John  Frost  v.  James  Chesley  and  Joseph  Chesley. 

An  amendment  of  the  declaration  may  be  permitted  on  review. 

Assumpsit  on  a  promissory  note.  The  declaration  de- 
scribed the  note  as  dated  July  23,  1804,  for  $64.34,  payable 
on  demand  with  interest. 

Plea:  general  issue. 

This  cause  was  tried  at  September  Term,  1806.  Verdict 
for  defendants. 

Review  entered,  February  Term,  1807.  The  cause  com- 
mitted to  a  jury. 

The  note  produced  was  for  .f64r84:  The  words  "thirty- 
four  cents  "  were  crossed.  Plaintiff  said,  intended  to  be  for 
$64,  only. 

Objection  was  made  to  the  note  being  received  in  evidence. 
There  was  then  a  motion  to  amend.  Before  that  was  de- 
cided, the  parties  agreed  to  a  reference.  At  September 
Term,  1807,  the  rule  was  discharged.  And  tlie  Court  (the 
Chief  Justice  not  present)  allowed  the  amendment. 

(N.  B.  It  was  stated,  and  the  recollection  of  the  Court 
was  so,  that  exception  was  taken  on  account  of  the  variance 
at  the  first  trial,  September  Term,  1806,  and  leave  given  to 
amend.  But  it  seems  the  amendment  was  not  in  fact  made. 
The  Chief  Justice's  minutes  siiow  that  leave  was  given  to 
amend.) 

At  September  Terra,  1807,  the  jury  did  not  agree. 

At  the  present  Term,  Smith,  C.  J.,  expressed  his  concur- 
rence with  the  order  to  amend  made  at  the  last  Term. 

He  said  he  was  aware  that  the  letter  of  the  statute  seemed 
to  forbid  any  amendment.  The  words  are,  "such  actions 
shall  be  tried  upon  the  pleas  made  upon  the  former  trial  upon 
record."  And  [he  was  also  aware]  that,  in  Massachusetts,  it 
had  been  considered  that  the  Court  could  not  direct,  i.  e.  order, 


FEBRUARY   TERM,  1808.  203 

Frost  V.  Chesley. 

without  consent,  any  alteration  or  amendment  in  the  pleadings. 
1  Mass.  160,  243.  (a)  But  he  conceived  that  the  meaning  was 
only  that  new  pleadings  should  not  be  required  ;  that,  as  a  mat- 
ter of  course,  the  trial  should  be  on  the  old  pleadings.  This 
phraseology  was  used  to  explain  the  old  law,  and  to  do  away 
a  very  idle  ceremony  —  pleading  that  the  former  judgment 
was  in  nothing  erroneous.  The  old  law,  Prov.  Law,  p.  27, 
declared  that  each  party  should  have  the  benefit  of  any  new 
and  further  plea  and  evidence.  In  the  new  act,  it  was  declared 
that  either  party,  on  the  review,  might  use  any  new  and  fur- 
ther evidence,  omitting  the  word  plea  ;  and  the  ruction  shall 
be  tried  on  the  former  plea.  It  was  not  intended  to  take 
away  or  abridge  the  equitable  and  useful  power  of  the  Court 
to  amend  the  proceedings  in  every  stage  of  the  cause ;  there 
are  no  words  necessarily  requiring  this  construction.  Indeed 
[?]  the  Court  will  not  suffer  the  pleadings  to  be  changed  as  a 
matter  of  course,  or  without  taking  care  that  the  other  party 
suffer  no  real  inconvenience  thereby.  (6) 

The  cause  was  now  tried;  and  verdict  for  plaintiff ,  $77.76. 

[Judge  Smith's  Note  to  a  Pkevious   Decision,  6  Manuscript 
Reports,  296.] 

If  it  were  necessary,  it  is  conceived  that  defendant  might 
amend  or  plead  anew  by  leave  of  court,  though  on  review. 
The  Statute,  ed.  1805,  90,  says  the  action  shall  be  tried  upon 
the  pleas  made  on  the  former  trial  upon  record.  The  design 
of  this  clause  was  to  take  away  the  senseless  practice  of  plead- 
ing to  the  writ  of  review,  which  formerly  prevailed.  The 
old  law  said  the  party  reviewing  should  have  the  benefit  of 
any  new  and  further  plea  and  evidence.  This  meant  argu- 
ment and  proof.  It  was  not  intended  to  touch  or  trench  on 
the  power  of  courts  to  permit  amendments  in  every  stage  of  a 
cause, — a  very  useful  and  necessary  power,  which  existed  at 

(a)  Mass.  Act,  I.  171.  There  shall  be  no  further  pleadings ;  but  the 
action  shall  be  tried  upon  the  review  by  the  issue  appearing  upon  the 
record  to  have  been  originally  joined  by  the  parties. 

I^b)  If  this  amendment  take  place,  the  cause  will  be  still  "  tried  upon 
the  plea  made  upon  the  former  trial  on  record." 


204  STRAFFORD. 


Frost  V.  Chesley. 


common  law.  The  Court  may,  and  doubtless  will,  in  such 
cases,  as  in  all  others,  grant  leave  on  such  terms  as  shall  work 
no  hardship  or  injustice. 

See  1  Mass.  159,  242,  contra.^ 

1  The  statute  of  Dec.  16,  1824,  enacts,  "  that  in  any  action  of  review, 
pending  in  any  court  in  this  State,  the  justices  thereof  shall  have  power 
to  order  any  amendment  of  the  original  writ,  record,  or  proceedings  in  any 
part  thereof."     See  Gen.  Laws,  c.  234,  §  6. 

In  Edgerly  v.  Emerson,  1827,  4  N.  H.  147,  148,  the  Court  recognized 
the  practice  which  existed  before  this  statute,  of  allowing  "  amendment  of 
the  forms  of  the  proceedings." 

Since  the  statute  of  1824,  it  has  been  held,  that  the  original  defendant, 
when  plaintiff  in  review,  cannot  plead,  in  bar  of  the  original  cause  of 
action,  matter  arising  subsequently  to  the  original  judgment:  Burley  v. 
Burley,  1833,  6  N.  H.  204;  Zollar  v.  Janvrin,  18(59,  49  N.  H.  114;  nor  can 
such  matter  be  pleaded  by  a  defendant  in  review,  by  way  of  bar  to  the 
writ  of  review:  Otis  v.  Currier,  1845,  17  N.  H.  463.  But  the  defendant 
may,  under  the  general  issue  originally  filed  in  the  case,  prove  an  act 
voluntarily  done  by  the  plaintiff  since  the  original  judgment,  which  is  of 
such  a  nature  as  to  avoid  the  plaintiff's  action  from  the  beginning:  Barker 
V.  Wendell,  1841.  12  N.  H.  119;  and  "  a  defendant  in  review  may  perhaps 
plead  a  release  of  the  right  of  review  :  "  Richardson,  C.  J.,  in  Burley  v. 
Burley,  1833,  6  N.  H.  204,  205. 

The  Court  may,  in  its  discretion,  refuse,  upon  review,  to  allow  a 
demurrer  to  the  original  declaration.  Colebrook  v.  Merrill,  1870,  49  N.  H. 
213. 

Amendments  changing  the  form  or  cause  of  action  are  not  allowable  on 
review;  either  before  the  statute  of  1824:  Edgerly  \.  Emerson,  ubi  supra ; 
or  since  that  statute:  Pearson  v.  Smith,  1873,  54  N.  H.  65.  In  Edgerly  v. 
Emerson,  it  was  held  that  a  set-off  could  not  be  filed  on  review. 

A  writ  of  review  may  be  amended.     TiUon  v.  Parker,  1827,  4  N.  II.  142. 


APRIL   TERM,   1808.  205 

Flanders  v.  Hefbert. 


HILLSBOROUGH,  APRIL  TERM,  1808. 


Jacob  Flanders  v.  Richard  Herbert  and  John  H. 

MORISON. 

An  officer  cannot  justify  under  a  writ  of  attachment  in  which  no  declaration  is 
inserted.     Such  a  paper  is  not  a  writ. 

This  was  an  action  of  trespass,  for  assaulting  and  beating 
the  plaintiff,  February,  1806,  at  Concord,  and  imprisoning  him 
ten  hours,  &c. 

Herbert  justified  under  a  writ  of  attachment  issued  by 
Samuel  Green,  a  justice  of  the  peace,  at  the  suit  of  T.  W.  T., 
treasurer  of  the  Fourth  New  Hampshire  Turnpike,  by  virtue  of 
which,  as  constable  of  C,  he  arrested  and  detained  him  in 
custody,  till  released  by  the  attorney  for  the  plaintiff  in  that 
suit. 

The  plaintiff  replied,  de  injurid  sud  proprid  et  absque  tali 
causd,  on  which  issue  was  joined. 

Morison  justified  under  Herbert,  and  there  was  a  similar 
replication  and  issue. 

On  the  trial,  at  April  Term,  1807,  it  appeared  in  evidence, 
that,  on  Feb.  4,  1806,  application  was  made  to  an  attorney  to 
commence  an  action,  in  the  name  of  the  treasurer  of  the 
Fourth  New  Hampshire  Turnpike  Road,  against  the  plaintiff, 
for  turning  out  of  the  turnpike  road,  with  his  team,  to  pass  the 
turnpike  gate,  in  Salisbury,  on  ground  adjacent,  which  was 
not  a  public  highway,  with  intent  to  avoid  the  payment  of  the 
toll,  —  to  recover  three  times  the  legal  toll  (Act  Dec.  8,  1800, 
674).  Flanders  was  then,  as  it  was  apprehended,  going  out 
of  the  State  ;  and  the  application  was  made  immediately  after 
the  passing  of  the  gate,  that  he  might  be  apprehended  before 
he  got  out  of  the  State.     The  attorney,  not  being  able  to  draw 


206  HILLSBOROUGH. 


Flanders  v.  Herbert. 


a  special  declaration  in  season,  filled  up  the  blank,  inserted 
the  names  of  the  parties,  adding,  "  in  a  plea  of  the  case  for 
that  whereas."  In  this  condition  the  writ  was  delivered  to 
Herbert,  who  was  constable  of  C,  to  serve ;  who  arrested 
Flanders,  and  detained  him  in  custody  till  he  compromised  the 

suit  with  the  plaintiff's  attorney,  which  he  did  by  paying  $ 

for  penalty  and  costs  ;  the  sum  paid  was  less  tlian  w^hat  was 
demandable  by  law.  Afterwards,  plaintiff's  attorney  took  the 
wi'it  from  the  officer,  and  obtained  leave  of  the  justice  to  in- 
sert the  declaration,  which  he  did,  and  filed  the  papers  in  the 
justice's  office,  and  produced  and  used  at  the  trial,  in  support 
of  his  plea,  an  attested  copy,  which  was  not  objected  to.  (a) 

Morison  acted -as  assistant  to  the  constable  by  his  order. 

At  the  trial,  B.  Chace^  of  counsel  for  the  plaintiff,  con- 
tended that  a  case  was  made  out  for  damages  on  three  grounds. 

1.  That  Herbert  had  not  a  legal  precept  under  which  he 
could  justify. 

[The  second  and  third  objections,  and  the  rulings  upon 
them  at  the  trial,  are  omitted.] 

(«)  It  may,  perhaps,  be  a  question  whether,  after  this,  it  is  competent 
for  the  plaintiff  in  this  suit  to  avail  himself  of  the  imperfect  state  in  which 
the  writ  was  at  the  time  of  the  arrest.  It  would  seem  clear  that  the  justice 
had  no  authority  to  permit  an  amendment  till  the  return-day.  Till  then 
there  could  be  no  parties  before  him,  and  amendment  should  never  be 
made  in  the  absence  of  the  other  party,  or  at  least  till  he  has  had  an 
opportunity  of  being  present.  It  is  not  clear  that  process  is  amendable 
where  defendant  is  defaulted,  having  never  entered  an  appearance.  1  Dall. 
77.  Till  return-day  there  was  no  suit  pending ;  after  compromise  there 
could  be  none.  Besides,  nothing  done  after  the  service  can  make  that 
good,  as  it  respects  the  officer,  which  was  not  so  before.  The  officer  must 
have  the  writ  at  the  time  of  the  arrest.  It  is  not  sufficient  that  he  obtain 
one  afterwards.    6  G.  Bacon,  108. 

Quare.  Should  not  Flanders  have  objected  to  the  copy,  and  thus  have 
compelled  Herbert  to  produce  the  original ;  all  done  after  the  compromise 
being  a  nullity  ? 

The  fact  stated  in  the  case,  of  the  state  of  the  writ  at  the  service,  was 
agreed  to  by  the  parties  on  the  trial. 

Qucere.  Can  plaintiff,  after  having  settled  the  action,  maintain  this  suit? 
Answer.  He  cannot  be  said  to  have  paid  the  money  voluntarily,  if  the 
arrest  was  illegal ;  it  was  extorted  from  him  ;  he  paid  it  to  obtain  his  dis- 
charge, and  may  even  recover  it  from  the  party. 


APRIL   TERM,   1808.  207 

Flanders  v.  Herbert. 

It  was  then  agreed  by  the  counsel,  that  the  jury  should  find 
a  verdict  against  both  defendants,  for  such  damages  as  they 
should  think  proper,  subject  to  the  opinion  of  the  Court, 
whether,  in  point  of  law,  the  instrument  which  Herbert  then 
had  would  justify  an  arrest;  if  not,  then  judgment  to  be  en- 
tered on  the  verdict ;  otherwise,  the  plaintiff  to  become  non- 
suit.    The  damages  were  assessed  at  $40. 

The  opinion  of  the  Court  was  now  delivered  by  Smith,  C.  J. 

It  is  very  clear  that  an  officer  can  justify  wherever  he  has 
a  writ  from  a  superior  court ;  a  court  which  has  general  juris- 
diction, jurisdiction  of  such  causes,  authority  to  issue  such 
writs ;  though  the  writ  in  that  particular  case  be  erroneous, 
void,^  an  absolute  nullity,  and  the  court  no  jurisdiction  in 
that  action,  or  at  least  might  be  ousted  of  jurisdiction  by  plea 
in  abatement,  and  had  no  authority  to  issue  that  writ.  3  Wil- 
son, 345  ;  2  Tidd,  936  ;  6  G.  Bacon,  167,  168 ;  2  Salk.  700. 

A  capias  ad  respondendum,  in  which  a  Term  intervenes  be- 
tween the  teste  and  return,  is  void,  an  absolute  nullity  :  2  Salk. 
700 ;  3  Wils.  345 ;  and,  if  the  sheriff  suffer  one  arrested  on 
such  writ  to  escape,  he  is  not  liable  to  the  creditor ;  and  yet 
he  may  justify  under  it.  The  only  case  where  an  officer, 
having  a  writ,  cannot  justif}',  is  that  where  the  court  issuing 
the  writ  has  no  jurisdiction.  There  seems  to  be  no  instance 
where  an  officer  cannot  justif}'^  under  a  writ  from  a  superior 
court.  The  cases  where  he  is  not  allowed  to  justify  are  where 
the  process  issued  from  inferior  courts  in  the  English  sense, 
i.  e.  courts  of  limited  jurisdiction. 

The  reason  assigned  for  the  rule  is,  that  an  officer  is  obliged 
to  obey  the  command  of  courts  having  general  jurisdiction, 
and  therefore  is  not  answerable  for  the  correctness  or  regu- 
larity of  the  process.     And  this  is  altogether  reasonable,  con- 

^  /.  e.  "  void  "  as  to  the  party  procuring  it  or  the  magistrate  issuing  it, 
but  voidable  only  as  to  the  officer.  The  officer  is  protected  in  the  service 
of  process  regular  and  legal  in  its  frame,  bearing  upon  its  face  all  the 
legal  requisites  to  make  it  perfect,  both  in  form  and  substance,  and  issued 
by  a  court  or  magistrate  having  jurisdiction  of  the  subject-matter.  State 
V.  Weed,  1850,  21  N.  H.  262;  s.  c.  in  Benn.  &  H.  Lead.  Cr.  Cas. 


208  HILLSBOROUGH. 


Flanders  i'.  Herbert. 


sidering  the  character  of  such  courts  for  correctness  and 
regularity,  and  the  degree  of  knowledge  we  may  fairly  pre- 
sume officers  are  possessed  of.  With  respect  to  inferior 
courts,  the  officer  must  judge,  at  his  peril,  Avhether  the  court 
has  jurisdiction. 

Whether  an  officer  could  justify,  under  a  writ  issued  from  a 
justice  [of  the]  peace,  where  the  ad  damnum  exceeded  four 
pounds,  may  be  a  question.  Whether  the  justices  of  the  peace 
come  within  the  denomination  of  inferior  courts  within  this 
rule  may  also  be  questioned.  I  am  clearly  of  opinion  that 
justices  of  the  peace  are  not  inferior  courts,  in  the  English 
sense  of  the  term,  in  every  case.  In  this  case,  on  the  ground 
on  which  I  form  my  opinion,  justices  of  the  peace  may  be  con- 
sidered as  courts  of  superior  jurisdiction. 

I  have  stated  the  general  doctrine  as  to  justification  by  offi- 
cers under  process,  and  I  agree  to  it,  but  do  not  think  it  deci- 
sive of  the  present  case.  I  have  no  doubt  that  Herbert  could 
justify,  under  a  writ  from  Samuel  Green  ;  that  Samuel  Green 
had,  in  this  case,  jurisdiction  ;  but  the  question  is,  whether 
Herbert  had  any  writ  at  the  time  he  made  the  arrest;  not 
whether  he  had  a  good  writ,  a  regular  precept,  a  writ  in  form 
of  law  ;  but  whether  he  had  that  which  can  be  denominated  a 
writ. 

A  writ,  an  original  writ,  in  the  English  sense,  is  a  manda- 
tory letter  from  the  King,  in  chancery,  on  parchment,  sealed 
with  the  great  seal,  and  directed  to  the  sheriff  of  the  county 
in  which  the  injury  is  supposed  to  have  been  committed, 
requiring  him  to  command  the  wrong-doer,  or  a  party  accused, 
either  to  do  justice  to  the  complainant,  or  else  to  appear  in 
court  and  to  answer  the  accusation  against  him.  3  Blackst. 
273.  All  writs  and  plaints  set  forth  the  cause  of  complaint, 
some  in  more  general,  others  in  more  particular,  terms.  3 
Blackst.  273,  293.  A  declaration  is  only  an- amplification  or 
exposition  of  the  original  writ  upon  which  the  action  was 
founded,  with  the  additional  circumstances  of  time  and  place 
when  and  where  the  injury  was  committed.  A  bare  inspec- 
tion of  the  forms  proves  what  I  have  mentioned.  Take  an}"" 
of  the  forms  in  3  Blackst.  Appendix  ;  and  I  take  it  for  granted, 


APRIL   TERM,  1808.  209 


Flanders  v.  Herbert. 


if  that  part  which  describes  the  cause  of  complaint  were  omit- 
ted altogether,  the  residue  would  not  be  a  writ.  Apply  this 
to  the  present  case.  I  think  Herbert  had  no  writ  upon  Eng- 
lish principles,  because  it  contained  no  account  whatever  of 
the  cause  of  complaint.  He,  Flanders,  has  been  attached  to 
answer  the  treasurer,  &c.,  in  an  action  of  the  case,  for  that, 
whereas,  to  the  damage  of  the  plaintiff,  so  much.  But  I  con- 
ceive the  case  is  different  when  brought  to  the  test  of  our  law, 
as  it  must  be,  for  this  is  one  of  the  cases  in  which  we  have 
deviated  most  from  English  practice.  We  have  seen  that  a 
writ,  in  England,  is  a  mandatory  letter  from  the  supreme 
power,  in  which  the  cause  of  action  is  briefly  stated,  hence 
called  a  brief.  There  are  a  great  number  of  these  writs,  dif- 
fering one  from  the  other.  They  are  preserved  in  a  book, 
called  the  Register,  Registrum  omnium  Brevium.  3  Blackst. 
51,  183,  184;    4  Blackst.  427. 

In  this  State  the  case  is  different.  We  have  but  a  small 
number  of  forms,  and  the  formal  part  is  the  same  in  almost  all 
actions,  and  is  prescribed  by  statute.  What  distinguishes  one 
writ  from  another  is  the  declaration.  In  England  it  is  the 
statement  of  the  cause  of  complaint.  The  writ,  in  New  Eng- 
land, does  not,  generally  speaking,  give  a  brief  account  of  the 
cause  of  action,  leaving  it  to  be  amplified  in  the  declaration ; 
but  it  contains,  and  must,  by  our  usage,  i.  e.  the  (our)  com- 
mon law,  contain  the  declaration.  When  we  speak  of  a  writ 
of  attachment,  we  mean,  not  the  formal  part  only,  —  for  this  is 
not  a  writ,  (a)  —  but  this  formal  part  with  a  declaration  in- 
serted. Both  constitute  a  writ  of  attachment;  neither  alone. 
In  the  forms  enacted  by  statute,  it  is  as  necessary  that  the 
blank  for  the  declaration  should  be  filled  as  any  of  the  other 
blanks.  Will  it  be  pretended  that  a  blank  signed  and  sealed 
by  the  clerk  is  a  writ  in  this  State  ? 

It  is  implied,  in  our  statutes,  that  the  declaration  must  be 

(a)  A  blank  warrant  is  no  justification  to  the  bailiff.  2  Hawk.  P.  C. 
B.  2,  c.  22,  §§  3,  216. 

According  to  the  course  of  proceedings  in  our  courts,  the  count  (declara- 
tion) 18  inserted  in,  and  makes  a  part  of,  the  writ.  Parsons,  C.  J.,  Com- 
monweaUh  v.  Churchill,  5  Mass.  180.     See  Ilsley  v.  Stubbs,  5  Mass.  285. 

14 


210  HILLSBOROUGH. 


Flanders  v.  Herbert. 


inserted  in  the  formal  part  prescribed  by  statute.  "  When  a 
defendant  duly  served  with  process,  that  is,  when  a  writ  is 
served,  doth  not  appear,  his  default  shall  be  recorded,  and  the 
charge  in  the  declaration  shall  be  taken  to  be  true."  If  the 
declaration  were  not  inserted  in  the  writ,  and  defendant  do 
not  appear,  I  conceive  no  judgment  could  be  rendered  by 
default.  In  this  State,  the  declaration  is  as  much  a  writ  as 
the  formal  part.  Indeed,  much  more  so,  for  it  is,  or  ought  to 
be,  sensible  ;  but  the  informal  part  is  insensible,  and,  therefore, 
not  a  writ.  Our  statutes,  though  they  do  not  expressly  re- 
quire the  declaration  to  be  inserted,  are  predicated  on  the 
idea  that  it  is  to  be  inserted ;  it  must  be  inserted  by  our  com- 
mon law.     Manuscript;  Pleadings,  42,  45. 

The  origin  of  this  usage  is  unknown,  (a)  In  Connecticut,  it 
is  said  to  be  by  statute  at  the  commencement  of  the  govern- 
ment. 2  Swift,  188,  193,  195.  (6)  Our  writs,  in  common 
cases,  ]-esemble  the  English  scire  facias,  audita  querela,  &c., 
which  contain,  in  the  body  of  the  writ,  the  complaint  or  cause 
of  action.     5  G.  Bacon,  329. 

Will  it  l)e  pretended  that  Herbert  could  justify,  in  this  case, 
under  a  declaration  without  the  formal  part?  And  yet  the 
declaration  is  the  better  half  of  the  writ.  The  instrument 
which  Herbert  had  was  but  part  of  a  writ.  It  was  insensi- 
ble, incomplete,  a  perfect  nullity.  It  was  not  amendable.. 
There  was  nothing  to  amend  by.  It  was  neither  abatable  nor 
abated.  It  never  existed  as  a  writ.  It  was  a  blank,  partly 
filled  up. 

It  is  not  to  be  understood  that  I  require  a  good  declaration 
to  be  inserted,  but  only  tliat  there  should  be  a  declaration  of 
some  sort.  The  formal  part  also  may  be  incorrect,  and  yet 
the  officer  justified. 

(o)  Manuscript  Records,  VII.  4.  Declaration  filed  as  in  England. 
This  was  in  the  famous  case,  Allen  v.  Waldron,  1706,  1707,  &c. 

[In  Manuscript  Digest,  reference  is  made  to  Bering  v.  Sheafe,  Manu- 
script Provincial  Records,  1699,  wliere  the  writ  did  not  contain  a  decla- 
ration.] 

(b)  2  Swift.  In  Connecticut,  declaration  is  parcel  of  the  writ.  Kirby, 
421. 


APRIL   TERM,  1808.  211 

Flanders  v.  Herbert. 

I  am  not  aware  that  any  injustice  is  done  by  this  decision. 
I  would  not  throw  on  officers  a  burden  they  are  not  able  to 
bear.  I  would  not  require  them  to  be  lawyei;s,  and  bound  to 
form  an  opinion,  at  their  peril,  of  the  correctness  of  process 
they  are  required  to  serve.  But  I  think  they  will  have  no 
difficulty  in  judging,  as  I  would  draw  the  line.  If  there  is  no 
declaration  at  all  in  a  capias,  they  are  not  bound  to  serve. 
They  would  be  liable  to  no  action  for  refusing  to  serve.  I 
believe  the  officer  in  this  case  was  aware  that  he  had  no  legal 
precept. 

As  this  is  the  only  question  saved,  I  think  there  must  be 
judgment  for  the  plaintiff,  though  I  think  the  damages  were 
excessive.  The  plaintiff  was  a  wrong-doer,  and  the  defendant 
seems  to  have  acted  with  no  bad  intentions.  I  think  nominal 
damages  only  should  have  been  given.  But  this  question 
was  submitted  to  the  jury,  and,  though  I  should  not  have 
decided  as  they  have  done,  yet,  as  the  damages  are  set  at  $40, 
I  would  not  set  the  verdict  aside  on  that  account. 

On  this  opinion  intimated,  B.  Chace,  attorney  for  plaintiff, 
remitted  $20  of  the  damages. 

Judgment  accordingly,  (a)  ^ 

LiVERMORE,  J.,  dissentiente. 
(a)   See  1  Chitty,  PI.  183-188. 

1  Sustained  by  Brigham  v.  Este,  1824,  2  Pick.  420;  Rathbone  v.  Rath- 
bone,  1827,  5  Pick.  221;  and  see  also  Guilford  v.  Adams,  1837,  19  Pick. 
376;  Keenan  v.  Knight,  1864,  9  Allen,  257. 

In  Clindmin  v.  Allen,  1828,  4  N.  H.  385,  388,  Richardson,  C.  J., 
said,  ....  "the  enacted  form  of  original  writs,  and  the  course  of  our 
practice,  have  rendered  a  declaration  essential  to  the  validity  of  a  writ, 
without  which  it  is  void.  It  has  been  so  decided  in  this  f;ourt  and  also  in 
Massachusetts.     Brigham  v.  Este,  2  Pick.  420." 

In  the  opinion  in  Bryant  v.  Warren,  1871,  51  N.  H.  213,  216,  it  was 
said  that  "  the  declaration  is  no  part  of  the  writ;  "  but  the  meaning  of 
the  Court  probably  was,  that  the  declaration  could  not  be  considered  as 
part  of  the  precept.  Bryant  v.  Warren  is  said  to  have  been  overruled  in 
August,  1878. 


212  CHESHIRE. 


Parker  v.  Willard. 


CHESHIRE,   MAY   TERM,    1808. 


JosiAH    Parker    v.    Lockhart    Willard,    Administrator 
of  Alpheus  Nimms. 

a  scire  facias  may  issue  within  one  year  after  a  grant  of  administration,  to  make 
the  administrator  a  party  to  a  suit  commenced  against  tlie  intestate,  and  pend- 
ing at  his  death.  The  statute  prohibiting  the  commencement  of  actions  against 
administrators  until  the  end  of  one  year  does  not  apply. 

The  cause  of  action  against  bail  is  founded  on  contract,  and  survives. 

This  was  a  scire  facias  brought  by  the  plaintiff  against 
Alpheus  Nimms,  as  bail  of  Isaac  Brown.  Pending  this  writ, 
Nimms  died,  and  his  death  was  suggested  on  the  record. 
Lockhart  Willard  was  appointed  administrator  of  Nimms,  and, 
pursuant  to  the  Act  Regulating  Process  and  Trials  in  Civil 
Causes,  passed  Feb.  9,  1791,  ed.  1805,  93,  a  scire  facias  was  duly 
served  on  Willard,  issued  from  the  clerk's  office  of  the  Court 
of  Common  Pleas,  where  the  suit  was  pending.  At  May 
Term,  1806,  Willard  demurred  to  the  scire  facias,  and  as- 
signed for  causes, — 

1st.  That  plaintiff's  action  against  said  Willard  was  com- 
menced before  the  end  of  one  year  after  Willard  took  out 
letters  of  administration  on  the  estate  of  Nimms. 

2d.  That  plaintiff,  in  his  said  scire  facias,  hath  not  alleged 
that  there  was  any  avoidance  of  said  Brown. 

3d.  That,  in  said  writ  of  scire  facias,  it  is  not  stated  how 
Nimms  became  bail  for  said  Brown,  or  that  he  ever  did  be- 
come bail. 

4th.  That  the  scire  facias  is  irregular  and  without  form. 

Plaintiff  joined  in  demurrer. 

The  opinion  of  the  Court  was  delivered  by  Smith,  C.  J., 
after  stating  the  pleadings. 

Three  exceptions  are  taken  to  the  scire  facias  in  this  case. 


MAY   TERM,  1808.  213 

Parker  v.  Willard. 

The  second  is  not  warranted  in  point  of  fact.  The  plaintiff 
does  aver  that  the  said  Isaac  avoided,  and  that  the  execution 
has  been  returned  non  est  inventus.  The  same  thing  may  be 
said  as  to  the  third  exception.  The  scire  facias  alleges  that 
Nimms  became  bail  for  the  said  Isaac  Brown,  in  the  original 
process,  on  the  writ  aforesaid,  not  only  for  the  appearance  of 
the  said  Isaac  to  answer  to  said  suit,  but  also  to  abide  the 
final  order  or  judgment  that  might  be  given  thereon,  as,  by 
the  return  of  the  original  process,  appears.  This  allegation  is 
in  the  usual  form  in  this  State.  Indeed,  it  is  more  pai-ticular 
than  it  need  have  been.  It  would  have  been  sufficient  merely 
to  have  stated  that  he  became  bail  in  the  original  process  ;  or, 
perhaps,  that  he  became  bail,  without  stating  how,  whether 
by  bond  or  on  the  writ. 

The  first  exception  is  that  which  is  principally  relied  on. 
This  is  founded  on  the  last  clause  of  the  Act  for  the  Equal 
Distribution  of  Insolvent  Estates,  passed  Feb.  11,  1791,  ed. 
1805,  184,  in  these  words:  "  No  action  shall,  in  any  cause,  be 
commenced  against  any  executor  or  administrator,  until  the 
end  of  one  year  after  such  executor  or  administrator  shall 
have  proved  the  will  or  taken  out  letters  of  administration."  ^ 

Is  this  an  action  commenced  against  Willard  within  the 
meaning  of  this  clause  of  the  statute  ?  The  scire  facias 
against  Nimms  was  an  action,  because  it  may  be  pleaded  to. 
2  VV.  Bl.  1227  ;  2  Sellon,  274.  But  the  scire  facias  against 
Willard  is  only  a  continuation  of  that  suit;  and  to  this  latter 
scire  facias  there  is  not,  nor  can  there  be,  any  pleadings.  In 
this  case,  the  demurrer  is  taken  to  the  original  scire  facias 
against  Nimms.  2  Wms.  Saund.  71  a  (4)  ;  2  Tidd,  983, 
1035  ;  2  Sellon,  275,  279.     See  Tidd,  Prac.  Forms,  441. 

The  statute  only  protects  representatives  from  original 
suits,  not  from  answering  in  such  as  may  be  pending  at  the 

^  "  No  action  shall  be  sustained  against  any  administrator,  if  com- 
menced within  one  year  after  the  original  grant  of  administration  ..." 
Gen.  Laws,  c.  198,  §  1. 

As  to  what  is  an  original  administration  within  the  meaning  of  this 
statute,  see  Kiltredge  v.  Folsom,  1835,  8  N.  H.  98;  Bell,  C.  J.,  in  Morgan 
V.  Dodge,  1862,  44  N.  H.  255,  261. 


2U  CHESHIRE. 


Parker  v.  Willard. 


time.  Calling  on  the  representative  to  become  a  party  in 
such  suit  is  not  tlie  commencement  of  a  suit  against  him. 
The  suit  against  Nimms  is  only  revived.  It  was  not  lost  by 
the  death  of  Nimms ;  this  proceeding  prevents  abatement. 
If  the  estate  of  Nimms  should  prove  insolvent,  the  adminis- 
trator can  suffer  no  inconvenience  from  this  construction  of 
the  act.  For  his  defending  tliis  suit  will  not  operate  as  an 
admission  of  assets:  2  VVms,  Saund.  12  n;  as  it  would,  if 
the  suit  had  been  originally  commenced  against  hiin.  At  all 
events,  the  administrator  may  enter  such  a  suggestion  on  the 
record,  when  he  appears,  as  to  preclude  an  admission  of  assets 
(1st  clause  of  4th  section). 

It  may  indeed  be  doubted  whether,  in  case  Nimms  had  died 
after  non  est  returned,  and  before  scire  facias  commenced,  and 
administration  had  been  immediately  granted  to  Willard,  on 
scire  facias  against  him,  he  could  have  availed  himself  of  this 
clause  in  the  statute,  inasmuch  as  the  act  regulating  bail 
provides,  p.  102,  that  the  scire  facias  against  bail  must  be 
served  within  one  year  after  judgment  against  the  principal. 
If  he  could,  the  death  of  the  bail,  in  such  case,  would  destroy 
the  creditor's  remedy,  (a) 

But,  however  this  may  be,  it  is  conceived  that  it  is  clear 
that  the  statute  does  not  bar  the  present  action,  which  was 
commenced  before  the  death  of  Nimms ;  and  that  such  has 
been  the  invariable  construction  of  the  statute. 

It  was  also  objected  by  the  counsel  for  Willard  on  this 
demurrer,  though  not  assigned  for  cause  specially,  that  this 

(a)   Suppose  no  administrator  appointed  within  a  year. 

The  act  of  Dec.  ;iO,  17i)!),  1^59,  it  applicable  to  this  case,  militates  with 
the  act  regulating  bail.  The  act  of  1799  would  allow  the  action  against 
the  representative  of  the  bail  at  any  time  within  two  years  after  adminis- 
tration taken.  But  this  is  an  addition  to  the  general  limitation  law.  Per- 
haps the  words  in  the  act  regulating  bail,  that  no  .scire  facias  shall  be 
served  on  the  bail  unless  within  a  year  next  after  judgment  against  the 
principal,  are  to  be  construed  strictly,  and  as  not  prohibiting  a  service  on 
his  representative  after  that  period. 

At  common  law,  delay  occasioned  by  the  act  of  God,  or  inevitable 
necessity,  saves  from  the  bar  of  Statute  of  Limitations.  See  ;3  N.  Y.  T.  R. 
197;  see  also  4  G.  Bacon,  460,  middle. 


MAY   TERM,   1808.  215 

Parker  v.  Willard. 

cause  of  action  does  not  survive  ;  consequently  the  repre- 
sentative of  Nimms  cannot  be  charged.  This,  if  well  founded, 
would  be  good  in  arrest  of  judgment  or  in  error. 

But  I  am  of  opinion  that  this  objection  is  not  well  grounded. 
The  representative  is  charged,  not  for  any  tort  committed  by 
Nimms,  but  on  his  contract  to  render  the  body  of  Isaac 
Brown  in  execution,  or  to  pay  the  debt.  This  scire  facias  is 
founded  on  a  duty  which  Nimms  owed  the  plaintiff.  Cowp. 
377.  In  form,  as  well  as  substance,  it  is  contract,  not  tort. 
I  believe  this  is  the  first  time  such  an  exception  was  ever 
taken.  If  it  had  been  considered  as  good,  we  should  long 
ere  now  have  heard  exceptions  to  bail,  not  merely  that  they 
were  not  of  sufficient  ability  as  to  purse,  but  that  they  were 
not  sufficient  in  body,  that  they  were  sickly,  old,  infirm,  not 
likely  to  outlive  the  suit  against  the  principal. 

Judgment  for  plaintiff,  (a)  ^ 

(a)  [Reference  is  here  made  to  Gilb.  Practice  of  C.  P.  ;  difference 
between  original  and  judicial  writs.] 

1  The  decision  on  the  first  point  is  supported  by  Colman  v.  Churchill, 
1821,  2  N.  H.  407  (holding  that  a  writ  of  review  may  be  sued  out  against 
an  administratrix  within  one  year  after  the  death  of  the  intestate) ;  Brecken- 
ridge's  AdinW  v.  Mellon'' s  AdrnW,  1836,  1  How.  (Miss.)  273;  Hemphill, 
C.  J.,  in  Boone  v.  Roberts,  1816,  1  Tex.  147,  153-159;  Hoah,  J.,  in  Bunk  of 
Brighlon  v.  Russell,  1866,  13  Allen,  221,  224.  And  see  Gkeen,  J.,  in  Ruche, 
Ex'r,  V.  Washinglon,  1846,  7  Humph.  (Tenn.)  142,  144. 

In  this  State,  the  objection  that  an  action  against  an  administrator  was 
commenced  within  a  year  from  his  appointment  must  be  pleaded  in  abate- 
ment. Clements  \,  Swain,  1822,^2  N.  H.  475;  Kittredge  v.  Folsoin,  1835, 
8  N.  H.  98,  113,  114;  Sargent,  J.,  in  Amoskeug  Man.  Co.  v.  Barnes, 
1868,  48  N.  H.  25,  29.  In  Massachusetts,  it  may  be  pleaded  in  bar.  Ben- 
thall  V.  Hildreth,  1854,  2  Gray,  288;  National  Bank  of  Troy  v.  Stanton, 
1875,  116  Mass.  435,  438.  So  in  Indiana.  Ferrand  v.  Walker,  1840,  5 
Blackf.  424.  In  Carson  v.  Bryant's  Adm'r,  1807,  2  Brev.  (S.  C),  159,  it 
was  pleaded  in  abatement;  but  the  case  did  not  turn  on  the  form  of  plead- 
ing. This  objection  cannot  be  set  up  for  the  first  time  in  the  Supreme 
Court  of  the  United  States  upon  appeal  from  the  Circuit  Court.  Walker 
V.  Walker,  1869,  9  Wall.  (U.  S.)  743. 

The  following  decisions  have  been  made  under  statutes  protecting  ex- 
ecutors and  administrators  from  suits  within  a  limited  time  after  their 
appointment. 

The  statute  does  not  apply  to  a  suit  on  the  administration  bond,  to  en- 


216  CHESHIRE. 


Parker  v.  Willard. 


force  the  due  execution  of  the  trust,  against  the  administrator  and  his 
sureties  personally,  and  not  against  the  estate.  Qreer  v.  Ohio,  for  the  use 
of  Greer,  1853,  2  Ohio  St.  574;  Bellows,  C.  J.,  in  Judge  of  Probate  v. 
Lane,  1871,  51  N.  H.  342,  349;  Extract  from  Manuscript  Treatise  on  Pro- 
bate Law,  post.  But  if  the  surety  on  an  administration  bond  die,  a  suit 
on  that  bond  against  his  (the  surety's)  administrator  is  within  the  statute. 
Ilammerle  v.  Kramer,  1861,  12  Ohio  St.  252. 

The  statute  applies  to  a  suit  against  an  executor,  as  such,  who  is  also 
residuary  legatee,  and  has  given  bond  to  pay  debts  and  legacies;  the  action 
not  being  brought  on  the  executor's  bond,  nor  in  any  form  against  him 
personally.  National  Bank  of  Troy  v.  Stanton,  1875,  116  Mass.  435. 
(Compare  Walher  v.  Cheever,  1859,  39  N.  H.  420,  429,  430,  as  to  statute 
prohibiting  suit  against  executor  after  three  years.) 

According  to  the  doctrine  of  Cooley  v.  Patterson,  1861,  49  Me.  570-572, 
an  administrator  de  bonis  non  may  be  sued  upon  the  expiration  of  the 
statutory  period  after  the  first  appointment  of  an  administrator,  and  is  not 
protected  during  a  similar  period  after  his  own  appointment;  "it  is  the 
estate  that  is  to  have  a  year,  and  not  every  representative  of  the  estate;  " 
see  ante  p.  213,  n.  1;  also  post,  Extract  froni  Manuscript  Treatise  on  Pro- 
bate Law.  In  Tennessee,  a  distinction  is  taken  between  an  administrator 
de  bonis  non  appointed  to  succeed  a  deceased  administrator,  and  one 
appointed  in  place  of  an  administrator  resigned ;  the  former  is,  and  the 
latter  is  not,  within  the  statute.  Minor,  Adrn'r,  v.  Webb,  Adm'r,  1870, 
1  Heisk.  395;   Coleman  v.  Raynor,  1866,  3  Coldw.  25. 

In  Massachusetts,  it  is  held  that  the  statute  does  not  prohibit  sum- 
moning an  executor  as  trustee  in  process  of  foreign  attachment.  Hoar 
V.  Marshall,  1854,  2  Gray,  251;  Ames,  J.,  in  Vantine  v.  Morse,  1870, 
104  Mass.  275,  276.  (And  see  Quigg  y.  Kittredge,  1846,  18  N.  H.  137, 
139.)     Contra,  in  Tennessee.     Gorman  v.  Swaggerty,  1857,  4  Sneed  (Tenn.), 

560. 

The  statute  applies  to  a  bill  in  equity  against  the  administrator  of  a  de- 
ceased vendee,  to  enforce  a  vendor's  lien  for  unpaid  purchase-money.  Reedy 
V.  Armistead,  1856,  31  Miss.  353.  But  it  does  not  apply  to  a  bill  in  equity 
to  foreclose  the  equity  of  redemption  in  premises  mortgaged  by  the  intes- 
tate.    Bradley  v.  Norris,  1830,  3  Vt.  369. 

A  bill  filed  by  a  creditor  against  the  administrators  of  his  deceased 
debtor,  and  others,  to  set  aside  a  fraudulent  conveyance  of  land,  made  by 
the  deceased  in  his  lifetime,  so  that  the  land  might  be  available  for  the 
payment  of  his  debts,  is  not  within  the  statute.  Manning  v.  Drake,  1847, 
1  Mich.  34.  Compare  Randall  v.  Peckham,  1873,  10  R.  I.  545;  and  John- 
son V.  Ames,  1831,  11  Pick.  173,  180,  181. 

A  declaration  need  not  aver  that  the  requisite  time  has  elapsed  before 
suit  brought.  Granjang  v.  Merkle,  1859,  22  111.  249.  But  if  the  declaration 
itself  shows  that  the  requisite  time  has  not  elapsed,  and  fails  to  state  a 
case  within  any  of  the  exceptions  in  the  statute,  it  is  bad  on  demurrer. 


MAY  TERM,  1808.  217 


Kingsbury  v.  Cooke. 


David  Kingsbury  v.  Noah  Cooke. 

The  iiK^orser  of  a  writ  is  liable,  though  a  set-off  was  pleaded  in  the  original 

action. 
An  indorser  of  a  writ  cannot,  upon  scire  facias  against  him,  avail  hinis*lf  of  any 

thing  which  goes  to  sliow  that  there  ought  not  to  have  been  judgment  for  the 

defendant  in  the  original  action. 

This  was  a  scire  facias  against  defendant,  as  indorser  of 

writ,  Jesse v.  plaintiff,  to  recover  costs  taxed  for  plaintiff, 

who  was  defendant  in  that  suit,  S.  C.  May  Term,  1806. 

Defendant  pleaded,  — 

1.  That  an  offset  was  filed  in  the  cause,  Jesse v.  David 

Kingsbury/,  by  defendant,  and  that  this  is  a  waiver  of  remedy 
against  indorser ;  because  the  set-off  may  have  occasioned  the 
recovery  of  costs,  and  not  the  want  of  merits  in  the  cause  of 
action. 

2.  That,  Nov.  16,  1804,  while  the  action,  Jesse v.  David 

Kingsbury,  was  pending  in  Superior  Court,  the  parties  in  that 
suit  settled  and  adjusted  all  demands  between  them,  including 
the  action  pending,    and   executed    mutual   discharges ;   and 

David  Kingsbury  then  and  there  paid  to  Jesse $35,  in 

full  satisfaction  and  discharge  of  said  action,  which  the  said 
Jesse  then  and  there  accepted  accordingly,  and  the  action,  by 
agreement  of  said  parties,  was  to  be  dismissed,  L  e.  nonsuit  and 
default  [?]. 

Demurrer  and  joinder. 

Newcomh,  for  plaintiff. 
Cooke,  for  himself. 

Levi  V.  Buchanan,  1872,  2  Cine.  144;  Hammerle  v.  Kramer,  1861,  12  Ohio 
St.  252. 

Whether  scire  facias  against  an  administrator,  to  obtain  execution  on 
a  judgment,  is  an  "action"  within  the  meaning  of  the  statute,  qucere. 
See  McLellan  v.  Lunt,  1837,  14  Me.  254;  Pettengill  v.  Patterson,  1855,  39 
Me.  498. 


218  CHESHIRE. 


Geer  v.  Haniblin. 


Per  Curiam.  The  statute,  ed.  1805,  p.  88,  contains  no 
exception  for  the  case  of  set-offs.  The  indorser  is  bound  to 
pay  all  the  costs  that  plaintiff  [defendant]  shall  recover  in 
the  action.  The  indorser  must  be  supposed  conusant  of  the 
law,  as  he  was  himself  a  lawyer  ;  and  of  the  defendants  right 
to  plead  a  set-off. 

The  second  plea  goes  to  show  that  no  judgment  should 
have  been  rendered.  It  is  enough  for  us  to  know  that  a 
judgment  was,  in  fact,  rendered  for  the  defendant.  We  cannot, 
on  this  scire  facias,  inquire  into  the  merits  of  that  judgment. 

Judgment  for  j^laintiff. 


Sally  Geer  v.  William  Hamblin. 

It  is  no  plea  to  a  writ  of  dower,  that  another  widow,  wiiose  husband  was  seised 
prior  to  the  demandant's  husband,  is  entitled  to  dower  in  the  same  lands. 

Dower  (writ  dated  Sept.  2,  1806)  ;  the  count  in  the  form 
prescribed  by  statute,  ed.  1805,  p.  153. 

The  plaintiff  was  the  wife  of  Shubael  Geer,  now  deceased, 
late  of  Chailestown,  and  demands  her  reasonable  dower  of  a 
messuage,  &c.,  in  Charlestown,  bounded  as  follows,  &c.,  which 
was  in  the  seisin  and  possession  of  the  husband,  whereof  he  was 
seised  in  fee  during  the  coverture. 

The  defendant  pleaded  several  pleas. 

The  third  plea  in  bar  was :  That,  on  May  1,  1777,  at  Charles- 
town,  one  John  Hubbard  was  married  to  Prudence  Hubbard  ; 
afterwards,  and  before  the  said  Shubael  is  supposed  to  have 
been  seised,  viz.  the  same  May  1,  1777,  the  said  John  Hub- 
bard was  seised  of  the  said  messuage  in  fee ;  afterwards,  and 
before  the  commencement  of  this  suit,  viz.  May  BO,  1806,  the 
said  John  Hubbard  died,  and  the  said  Prudence  survived  him, 
and  thereby  became,  and  still  continues,  legally  entitled  to 
demand  and  recover,  against  the  defendant,  her  reasonable 
dower  of  the  said  messuage   of  the   endowment  of  the  said 


MAY   TERM,   1808.  219 

Geer  v.  Hamblin. 

John  Hubbard,  her  husband :   which  defendant  is  ready  to 
verify,  &c. 

Demurrer,  and  joinder. 

C.  Ellis^  for  defendant. 
Chamberlain,  for  plaintiff. 

The  opinion  of  the  Court  was  now  delivered  by  Smith,  C.  J. 

The  question  is,  whether  the  matter  set  forth  in  this  plea  in 
bar,  viz.  that  another  widow,  the  widow  of  one  prior  in  seisin, 
has  a  claim  of  dower  in  the  same  land,  is  a  bar  to  the  plaintiffs 
recovery. 

To  constitute  a  good  bar,  it  must  be  shown  that  the  plaintiff 
has  no  right.    That  two  widows  should  be  endowed  out  of  the 
same  messuage  is  no  novelty,  (a)     The  case  put  by  Perkins, 
§  315,  and  noticed  by  Lord  Coke  in  his  Commentary  on  Lit- 
tleton, 31  rt,  shows  that  this  may  be  the  case  in  England.    This 
plea  is,  therefore,  bad,  unless  it  can  be  maintained  that  Shu- 
bael  Geer,  the  husband  of  the  demandant,  had  no  seisin  in 
deed  or  in  law,  during  the  coverture,  in  the  premises  described 
in  the  writ ;  and  that  is  the  matter  to  be  tried  on  the  first 
issue.     Co.  Lit.  31  a ;    Watkins  on  Descent,  49.     The  only 
objection  stated  to  his  seisin,  in  this  plea,  is,  that  another  person 
was  seised  before  him,  whose  wife  is  entitled  to  dower.     But 
how  does  this  show  that  Shubael  Geer  had  no  seisin  ?     To 
constitute  a  claim  to  dower,  it  is  not  necessary  that  the  hus- 
band should  be  seised  of  an  indefeasible  estate  (though  Shu- 
bael Geer  had  such  an  estate).     3  G.  Bacon,  367  ;  Perk.  420  ; 
1  List.  31  a ;  Perk.  §  315  ;  F.  N.  B.  351.     Lord  Coke  puts 
the  case  of  grandfather,  father,  and  son  ;  and  the  grandfather 
is  seised  of  three  acres  of  land  in  fee,  and  taketh  wife,  and 
dieth  ;   the   land  descendeth  to  the  father,  who  dieth   either 
before  or  after  entry  ;  the  wife  of  the  father  is  dowable  ;  clearly 
the  wife  of  the  grandfather  is  dowable.  (h)     Here  there  are 

{(i)  See  the  case  put  by  Swift,  I.  251,  255. 

Divorce,  under   Connecticut  act,  in  some  cases,  allows  dower  to   the 
divorced  wife. 

(6)  Is  not  this  case  better  stated  in  Perkins  than  in  Coke? 


220  CHESHIRE. 


Geer  v.  Hamblin. 


two  widows  dowable.  The  grandmother  will  have  one  acre 
for  her  dower.  The  wife  of  the  father  shall  have  a  third  of 
the  remaining  two  acres,  because  her  husband  was  not  seised 
in  deed  or  in  law  of  the  part  which  constitutes  the  dower  of 
the  grandmother.  Her  title  to  dower  is  paramount  to  the 
title  of  the  father,  (a)  It  is  more  favored  than  his  by  descent, 
though  the  heir  is  an  object  of  favor  in  the  English  law.  In- 
stantly, on  the  death  of  the  grandfather,  the  father  was  seised 
of  the  two-thirds.  Of  the  one-third,  his  seisin  was  defeated  l)y 
the  grandmother's  title  to  dower.  Watkins,  46.  As  to  this,  he 
has  only  a  reversion  expectant  upon  a  freehold,  which  is  not  a 
seisin  which  entitles  the  wife  to  dower.  When  the  grand- 
mother dies,  the  father's  wife 'shall  not  be  endowed  of  this  one- 
third  ;  and  this  is  a  case  where  dos  de  dote  peti  non  debet. 
Here  the  father's  title  was  by  descent ;  and  two  widows  are 
endowed  in  the  same  messuage ;  one  of  one-third  ;  and  the 
other  of  one-third  of  the  residue,  i.e.  [of  one-third  of]  two- 
thirds. 

But  the  case  further  supposes  that  the  grandfather  had  en- 
feoffed the  father.  Watkins,  94.  In  this  case,  the  wife  of  the 
grandfather,  on  his  decease,  would  have,  for  dower,  one-third 
of  the  whole,  and  the  wife  of  the  father  one-third  of  the 
remaining  two-thirds.  And,  in  case  of  the  death  of  the 
grandmother  before  the  father's  wife,  she  would  have  dower 
in  the  other  third,  i.e.  dos  de  dote :  Watkins,  96  ;  for  here 
the  husband  was  seised,  and  his  seisin  is  not  defeated  by  his 
mother's  dower.  He  is  not  seised  so  as  to  defeat  the  right  of 
the  grandmother  to  dower,  but  so  as  to  give  his  wife  title  to 
dower  in  the  whole,  when  the  grandmother's  title  to  dower 
ceases.  If  the  father  die  first,  and  his  wife  have  her  dower  as- 
signed, then  the  grandmother  can  maintain  her  writ  of  dower 
against  the  mother.  Watkins,  98,  &c.  Apply  that  to  this 
case.  We  may  suppose  John  Hubbard  conveyed  to  Shubael 
Geer,  and  he  to  defendant.  On  the  death  of  John  Hubbard, 
his  wife  was  entitled  to  dower,  because  John   Hubbard  was 

(a)  She  is  in  from  her  husband,  and  not  from  the  heir.  Her  estate  is, 
as  it  were,  the  continuance  of  his,  i.  e.  tbje  husband's.  The  heir  has  only 
a  reversion.     1  VVatk.  84. 


MAY   TERM,  1808.  221 

Geer  v.  Hamblin. 

seised.  On  the  death  of  Shuhael  Geer,  his  wife  was  entitled 
to  dower  for  the  same  reason  ;  but  as  her  husband  was  seised 
subject  to  Prudence  Hubbard's  claim  to  dower,  that  claim 
must  be  satisfied.  Sally  Geer  will,  therefore,  be  entitled  to 
one-third  of  two-thirds,  and  one-third  of  the  remaining  one- 
third  of  the  whole,  on  the  death  of  Prudence  Hubbard.  It 
would  seem,  therefore,  clear,  that  it  is  immaterial,  as  to  the 
rights  of  the  parties,  which  died  first,  —  John  Hubbard  or  Shu- 
bael  Geer.  The  after-seisin  is  good,  except  quoad  the  prior  claims 
to  dower.  Supposing  this  to  be  the  present  case,  the  plaintiff 
is  entitled  to  recover  her  dower,  one-third  of  the  whole,  liable 
to  be  reduced  to  one-third  of  two-thirds,  if  Mrs.  Hubbard 
should  be  pleased  to  demand  her  dower;  which  it  is  not  likely 
she  will,  the  estate  of  her  husband  being  solvent,  (a)  i  But 
this  is  a  matter  of  which  William  Hamblin,  the  defendant, 
cannot  avail  himself.  As  against  him,  the  demandant  has  a 
good  claim  to  one-third  of  the  whole.  If  this  should  be  re- 
duced by  Mrs.  Hubbard's  taking  her  dower,  one-third  of  the 
whole,  it  is  an  affair  that  concerns  the  two  widows.  I  should 
suppose  that  defendant  will  not  be  very  anxious  for  such  an 
event,  because  it  will  take  from  him  one-third  and  one-third  of 
two-thirds,  that  is,  five-ninths  instead  of  three-ninths. 

It  is  absurd  to  suppose,  as  this  plea  does,  that  the  demand- 
ant's right  to  dower,  when  she  has  in  her  favor  the  three 
incidents,  marriage,  seisin,  and  the  death  of  the  husband, 
should  depend  on  the  contingency  of  another,  who  has  also 
a  right,  demanding  or  omitting  to  enforce  her  right.  Lands 
subject  to  a  title  of  dower  were  devised  to  a  person  in  fee,  who 
died  leaving  a  widow  ;  this  widow  sued  for  her  dower,  and  re- 
covered a  third  part  of  the  whole,  without  any  regard  to  the 
title  of  dower  in  the  widow  of  the  testator,  who  did  not  put  her 
claim  in  suit :  not  having  recovered  her  dower,  it  was  to  be  laid 
out  of  the  case.    Hilchins  v.  Jlilchins,  1  Cruise,  153,  §  28. 

It  is  a  strong  evidence  against  this  plea,  that  it  never  was 
before  pleaded,  and  yet  the  case  must  have  often  occurred. 

(a)  It  is  not  unusual  for  dower  to  be  claimed  anew  on  eviction. 
Perkins,  379,  418,  419. 

1  See  Russ  v.  Perry,  1870,  49  N.  H.  547. 


222  CHESHIRE. 


Geer  v.  Hamblin. 


This  plea  dcfes  not  state  that  Prudence  Hubbard  did  not  join 
with  her  husband  in  conveying.  As  it  admits  an  after-seisin 
in  Shubael  Geer,  there  must  have  been  a  conveyance  of  some 
kind  from  John  Hubbard.  But,  as  it  is  stated  that  Prudence 
Hubbard  lias  a  lawful  claim  of  dower,  perhaps  it  is  sufficient. 

But  the  })lea  is  bad  in  substance.  The  matter  set  forth  is  no 
answer  to  the  demandant's  claim. 

After  this  opinion  was  delivered,  the  parties  agreed  that 
Shubael  Geer  was  lawfully  married  to  the  demandant,  and,  dur- 
ing the  coverture,  seised  ;  and  that  he  died  before  June  6, 1806 ; 
on  which  day  demandant  lawfully  demanded  dower,  which  was 
refused;  that  defendant  holds  under  Shubael  Geer,  and  that 
improvements  have  been  made,  so  that  premises  are  increased 
in  value  since  Shubael  Geer's  seisin  ;  and  that  the  Court  assess 
the  damages,  if  any,  due  for  detention  of  dower. 

Judgment.  That  demandant  recover  her  dower  ;  and  that  a 
third  part  in  value,  according  to  the  value  when  the  husband 
conveyed,  be  assigned,  &c.  Annual  income  of  one-third,  at 
that  time,  $40.     Stat.  ed.  1805,  155.^ 

1  This  case  was  reported  in  a  note  to  Fosdick  v.  Gooding,  1820,  1  Greenl. 
(Me.)  30,  54. 

The  general  doctrine,  as  to  dower  in  lands  subject  to  a  prior  right  of 
dower,  is  fully  discussed  in  1  Scrib.  Dower,  c.  15,  311-320;  and  is  also 
considered  in  1  Bishop,  Law  of  Married  Women,  §§  275-277;  1  Washb. 
Real  Prop.  3d  ed.  211-244;  4  Kent,  64;  1  Greenl.  Cru.  Dig.  tit.  VI. 
c.  II.  §§  20-23,  28,  n.  1. 

In  addition  to  the  cases  cited  in  the  above  works,  see  McLeery  v. 
McLeery,  1876,  65  Me.  172;  Reitzel  v.  Eckard,  1871,  65  N.  C  673; 
Peckham  v.  Iladwen,  1865,  8  R.  I.  160;  Steel  v.  La  Framhois's  AdrnW, 
1873,  68  111.  456. 


MAY    TERM,  1808.  223 


Willard  v.  Kingsbury. 


Joseph  Willard  and  Wife,  Appellants,  v.  Ephraim 
Kingsbury. 

Where  an  administrator  has  settled  his  final  account  in  the  Probate  Court,  and  a 
decree  has  been  made,  directing  him  to  pay  the  balance  to  certain  parties,  the 
Probate  Court  is  not  the  proper  tribunal  to  try  the  question  whether  the  admin- 
istrator has  fulfilled  the  decree. 

Appeal  from  decree  of  Judge  of  Probate. 

Absolem  Kingsbury,  Feb.  5,  1800,  was  appointed  adminis- 
trate* on  the  estate  of  Daniel  Perrin.  Oct.  1,  1803,  he  settled 
his  administration  account ;  balance  in  hands  of  administrator, 
$844.85  ;  ordered  to  pay,  of  this  sum,  160  to  husband  of 
the  widow  of  Perrin,  viz.  Joseph  Willard  (her  proportion 
of  the  personal  estate)  ;  (a)  the  residue,  $784.85,  to  be  paid  to 
Elisha  Kingsbury,  guardian  to  the  heirs  of  Perrin,  upon  his 
giving  security  to  pay  Mrs.  Willard,  widow  of  Perrin,  annually, 
during  her  life,  interest  of  $261.62,  it  being  in  lieu  of  her 
dower  in  her  late  husband's  estate.  (It  seems  the  whole 
estate  had  been  sold,  by  license,  for  payment  of  debts ;  it  was 
thought  reasonable,  as  it  was  advantageous  to  the  heirs,  that 
the  widow  should  have  the  interest  of  the  one-third  that 
remained  after  debts  paid.) 

Absolem  Kingsbury,  the  administrator,  died  testate,  before 
Oct.  1,  1806  ;  the  appellee,  Ephraim  Kingsbury,  his  son,  was 
his  executor. 

On  that  day,  Ephraim  Kingsbury  appeared  before  the  judge 
of  probate,  and  settled  an  additional  account  of  administration, 
as  executor  of  his  father,  Absolem  Kingsbury.  He  charged 
himself  with  the  balance  of  the  former  account,  $844.85,  and 
interest,  $152.07  ;  total,  $996.92 ;  and  had  allowance  for  the 
payment  made  to  the  widow  of  Perrin  under  the  former  decree, 

(a)  This  was  not  a  distributing  of  surplusage  of  personal  estate,  but 
an  allowance  to  widow;  personal  estate  insuflBcient  to  pay  debts,  &c.  (ui 
semble) . 


224  CHESHIRE. 


Willard  v.  Kingsbury. 


$60,  and  interest,  $7.20,  and  on  account  of  interest  under 
former  decree  in  lieu  of  dower,  $20,  and  interest  upon  the 
payment,  $2.40,  and  charges  of  this  settlement,  $5.26  ;  total, 
$94.86  ;  balance  in  hands  of  executor,  $902.06. 

The  judge  of  probate  then  decreed  $27.09  of  this  balance  to 
be  paid  to  Joseph  Willard,  the  husband  of  Perrin's  widow,  as 
the  balance  of  interest  due  her  under  the  decree  of  Oct.  1, 
1803,  and  that  he  pay  interest  on  $261.62,  as  before,  under  the 
former  decree. 

From  this  latter  decree  an  appeal  was  taken,  and  is  the 
matter  now  before  the  Court. 

Two  objections  were  made  to  the  decree  complained  of  by 
Mr.  Briggs,  counsel  for  the  appellants. 

1.  That  it  appears,  from  the  decree  itself,  that  Absolem 
Kingsbury,  the  administrator  of  Perrin,  had  fully  accounted 
for  all  the  estate  that  ever  came  to  his  hands  as  administrator 
of  Perrin,  and  that  no  such  estate  had  ever  come  to  the  hands 
of  the  plaintiff,  representative  of  the  administrator  ;  and  that 
the  administrator,  in  his  settlement,  Oct.  1,  1803,  had  been 
allowed  for  all  his  services  and  disbursements  in  relation  to 
his  oflBce  of  administrator.  There  was,  therefore,  no  subject- 
matter  for  an  account  subsisting,  which  could  found  any  juris- 
diction in  the  judge  of  probate  ;  nothing  for  the  judge  of 
probate  further  to  do  ;  that  he  could  not  lawfully  inquire  and 
decree  concerning  the  performance  or  non-performance  of  the 
former  decree  ;  this  matter  not  being  within  his  jurisdiction, 
but  triable  at  law.  And,  therefore,  on  this  ground,  that  the 
decree  should  be  reversed,  the  proceedings  being  coram  non 
judice. 

2.  But,  if  the  Court  should  be  of  a  different  opinion,  he 
denied  that  any  such  payments  had  been  in  fact  made,  as 
stated  in  the  account,  &c. 

Smith,  C.  J.,  now  delivered  the  opinion  of  the  Court,  recog- 
nizing the  doctrine  laid  down  by  Mr.  Briggs  ;  and  adding  that 
the  executor  of  A.  K.  could  only  settle  an  account  which 
A.  K.,  if  alive,  could  have  settled  ;  that  it  appears  that  no  such 
account   remained  to   be  settled.     A.   K.  wsls  functus  officio. 


MAY  TERM,  1808.  225 

Willard  v.  Kingsbury. 

His  office  of  administrator  was  at  an  end.  The  settlement  of 
Oct.  1,  1803,  was  a  final  settlement;  and,  as  far  as  now  ap- 
peared, the  decree  was,  in  law,  a  final  decree.  The  judge  of 
probate  is  not  the  proper  forum  to  try  the  question  whether 
the  administrator,  A.  K.,  or  his  representatives,  have  fulfilled 
that  decree.  This  must  be  done  at  law,  either  in  a  suit  on 
the  administration  bond  or  decree.  The  executor  of  Absolem 
Kingsbury,  the  administrator,  had  nothing  to  do  with  the  estate 
of  Perrin  but  to  perform  the  decree,  and  with  that  the  judge 
of  probate  has  no  concern. 

Decree  reversed.  The  parties  remain  where  they  vere  before  it 
was  passed,  (a)  ^ 

(a)  Action  was  then  pending  by  Willard  and  wife  to  recover,  as  money 
received  to  plaintiff's  use,  the  interest  for  two  years. 

Judgment  on  report  (for  plaintiffs),  October,  1808.  The  action  was 
against  E.  K. 

1  In  support  of  these  views,  see  Bell,  C.  J.,  in  Hill  v.  Mcliitire,  1859, 
39  N.  H.  410,  413;  Perley,  C.  J.,  in  Hayes  v.  Hayes,  1868,  48  N.  H. 
219,  226,  227. 

In  Vermont,  the  Probate  Court  cannot  imprison  a  former  administrator 
for  non-compliance  with  a  decree  to  pay  over  to  the  administrator  de  bonis 
non  the  balance  found  due  on  final  settlement  of  the  first  administrator's 
account.     In  re  Bingham,  1859,  32  Vt.  329. 

In  New  York,  the  statute  provides  that  a  surrogate's  decree  for  the 
payment  of  money  by  a  guardiaru  may  be  docketed,  and  an  execution 
issued  thereon;  also  that  the  surrogate  may  "enforce  all  lawful  orders, 
process,  and  decrees  of  his  court,  by  attachment."  In  Seaman  v.  Duryea, 
1854,  11  N.  y.  (1  Kernan)  324,  a  guardian  was  proceeded  against  in  the 
Surrogate's  Court,  by  attachment,  for  contempt  in  not  paying  over  a 
balance  according  to  the  surrogate's  decree. 


16 


226  CHESHIRE. 


Temple  v.  Sumner. 


Elizabeth  Temple  v.  John  H.  Sumner,  Plaintiff  in  Review. 

At  the  time  of  impanelling  a  jury,  a  juror,  in  answer  to  a  question  by  the  defend- 
ant, declared  that  he  had  neither  formed  nor  expressed  any  opinion,  and  that 
lie  never  had  iieard  the  cause  tried.  In  fact,  the  juror  had  heard  the  cause  tried 
on  a  former  occasion,  and  had  declared  to  sundry  persons  that,  in  his  opinion, 
the  plaintiff  must  and  ought  to  recover,  and  that,  if  he  had  been  on  the  jury 
(which  did  not  agree),  he  would  have  kept  them  together  till  they  had  agreed 
for  the  plaintiff. 

Held,  that  these  facts  did  not  give  cause  for  setting  aside  a  verdict  in  favor  of  the 
plaintiff,  though  the  defendant  were  ignorant  of  them  till  after  the  verdict. 

By  Smith,  C  J.  As  a  general  rule,  what  might  be  taken  advantage  of  by  way 
of  challenge  shall  not  avail  on  motion  for  a  new  trial,  with  the  exception,  only, 
of  the  cases  where  there  lias  been  gross  misconduct  in  the  other  party  as  well 
as  in  the  juror,  such  as  briliery,  &c. ;  and  the  knowledge  or  ignorance  of  the 
party,  as  to  the  existence  of  the  causes  of  challenge  at  the  time  of  irtipanelling 
the  jury,  will  make  no  difference  in  the  case. 

Ejectment,  to  recover  four  hundred  acres  of  land  in 
Claremont,  original  right  of  John  Temple.  (Original  writ 
teste  Aug.  14,  1800.  Verdict  at  October  Term,  1803,  for 
plaintiff.  Review  entered,  May  Term,  180-1.  At  May  Term 
and  October  Term,  ISOo,  and  May  Term,  1806,  jury  did  not 
agree.     At  May  Term,  1807,  verdict  for  plaintiff  as  before.) 

Motion  for  new  trial. 

1.  Because  Caleb  Baldwin,  one  of  the  jurors,  had  formed 
and  declared  an  opinion  against  the  defendant  Sumner,  before 
the  trial,  and  had  determined,  before  he  heard  the  cause  as  a 
juror,  which  way  to  decide  it. 

2.  At  the  time  of  impanelling  the  jury,  on  a  question  put 
at  request  of  Sumner's  counsel,  this  juror  untruly  declared 
that  he  had  neither  formed  nor  expressed  any  opinion,  and 
that  he  never  had  heard  the  cause  tried  ;  which  affords  suffi- 
cient evidence  of  his  favor  for  the  party  that  prevailed,  or 
malice  against  the  one  that  lost. 

^llis,  Chamberlain,  and  J^ose,  for  defendant  Sumner. 
Wilson  and  Upham,  for  Temple. 


MAY   TERM,  1808.  227 

Temple  v.  Sumner. 

The  opinion  of  the  Court  was  delivered  by  Smith,  C.  J. 

After  stating  the  motion,  he  proceeded  thus  :  — 

The  ground  of  this  motion  is  that  one  of  the  jury  who  tried 
the  cause  was  not  impartial  and  indifferent. 

Our  first  inquiry  is  as  to  the  facts  stated. 

And  Iiere  there  seems  to  be  no  doubt,  from  the  evidence. 
The  juror  in  question  had  heard  the  cause  tried  on  a  former 
occasion,  and  declared  to  sundry  persons  that,  in  his  opinion, 
plaintiff  must  and  ought  to  recover,  and  that,  if  he  had  l)een 
on  the  jury  (which  did  not  agree),  he  would  have  kept  them 
together  till  they  had  agreed  for  plaintiff.  And,  when  the 
jury  were  impanelled  for  the  trial  of  the  cause  at  May  Term, 
1807,  the  same  juror,  on  being  called  on  at  request  of  de- 
fendant, Sumner,  declared  that  he  had  never  heard  the  cause 
tried,  and  that  he  had  neither  formed  nor  declared  any 
opinion,  (a) 

Supposing  the  facts  established,  —  and  I  think  they  are 
clearly  established,  — 

I.  Was  it  good  cause  of  challenge  ? 

It  is  amongst  the  most  essential  rights  of  our  citizens  to  be 
tried  by  judges,  which  includes  jurors,  as  impartial  as  the  lot 
of  humanity  will  admit.  Const.,  Part  L,  Art.  35.  This  is  no 
new  right  granted  by  the  Constitution.  The  common  law 
speaks  the  same  language.  1  Sell.  475  ;  Gilb.  C.  P.  95,  &c. 
The  theory  of  the  common  law  is  "  that  jurors  should  come  to 
a  trial  with  minds  like  white  paper,  upon  which  prejudice, 
passion,  or  calumny,  hope,  interest,  or  fear,  have  made  no 
stain  or  blot."  3  Burr.  1856.  The  law  has  so  watchful  an 
eye  to  the  pure  and  unbiassed  administration  of  justice,  that 
it  will  never  trust  the  passions  of  mankind  in  the  decision  of 
any  matter  of  right.     Hence  it  is  that  the  smallest  degree  of 

(o)  The  only  express  evidence  of  partiality  or  malice  is  the  denial  that 
he  had  formed  and  declared  an  opinion,  and  that  he  had  not  heard  the 
cause.  Might  he  not  forget?  Some  persons  hastily  form,  hastily  declare, 
and  as  hastily  forget,  opinions.  The  next  time  they  speak  on  the  subject, 
they  express  an  opposite  opinion.  Perhaps,  when  he  said  he  had  not 
heard  the  former  trial,  he  might  have  meant  that  he  did  not  hear  the 
whole ;  and,  as  he  was  merely  a  spectator,  it  is  probable  he  did  not. 


228  CHESHIRE. 


Temple  r.    Sumner. 


interest  in  the  matter  to  be  tried  disqualifies  a  juror.  The 
law  considers  him  as  under  an  influence  which  may  warp  his 
integrity  or  pervert  his  judgment,  and  therefore  will  not 
trust  him.  But  interest  is  not  the  only  thing  that  warps 
the  judgment.  Kindred  often  creates  a  strong  bias  on  the 
mind.  Having  been  counsel  or  arbitrator  for  a  party  has 
often  the  same  undue  influence.  So,  having  tried  the  cause 
before,  in  a  lower  court,  by  our  statute,  expressly  disables  a 
judge  from  trying  it  in  a  superior  court  to  which  he  may  be 
removed:  N.  H.  Laws,  ed.  1805,  91,  95;  and  yet  the  judg- 
ment appealed  from  is,  as  it  were,  annihilated  by  the  appeal. 
So,  having  tried  the  cause  before  as  a  juror,  having  declared 
an  opinion,  having  prejudices  in  relation  to  the  question  to  be 
tried,  or  prejudices  in  favor  of  or  against  either  of  the  parties. 
We  know  that  affection  will  blind  the  eyes  ;  it  will  warp  the 
judgment ;  a  prejudiced  man  of  strong  mind  and  honest  heart 
will  sometimes  find  it  difiicult  to  hold  the  balance  of  evidence 
perfectly  even  ;  and  an  honest,  but  weak,  man  may  be  so 
biassed  as  to  think  he  is  governed  by  his  evidence,  when  in 
truth  he  is  governed  by  his  feelings  and  his  prejudices.  3  G. 
Bacon,  756.     All  these  are  causes  of  challenge. 

Those  are  said  to  be  principal  causes  of  challenge  which 
carry  with  them  prima  facie  evidence,  marks  of  suspicion, 
either  of  malice  or  favor.  Trials  per  Pais,  132.  Interest, 
kindred,  having  taken  money  for  his  verdict,  &c.,  are  of  this 
description.  If  the  fact  be  proved,  it  is  the  duty  of  the 
Court  to  set  the  juror  aside.  The  law  presumes  the  bias. 
The  Court  has  no  discretion  to  exercise,  but  barely  to  judge 
of  the  evidence  of  the  fact.  But,  where  the  objection  is  only 
some  probable  circumstance  of  suspicion,  such  as  great  inti- 
macy and  the  like,  this  is  said  to  be  challenge  only  to  the 
favor.  And  in  England,  and  in  some  of  the  States  in  our 
Union,  this  challenge  is  tried  by  triors;  and,  respecting  these 
challenges,  there  do  not  seem  to  be  any  fixed  rules.  That 
such  exceptions  should  be  received  and  tried  demonstrates 
the  anxiety  of  the  law  that  jurors  should  be  omni  exceptione 
majores. 

In  this  State,  I  apprehend,  we  never  have  adopted  the  dis- 


MAY   TERM,  1808.  229 

Temple  v.  Sumner. 

tinction  between  principal  challenges  and  challenges  to  the 
favor.  All  challenges  are  tried  by  the  Court ;  ^  and,  if  it 
appears  to  the  Court,  judging  on  the  broadest  ground,  that  the 
juror  does  not  stand  indifferent  in  the  cause,  he  is  set  aside. 
Stat.  ed.  1805,  108. 

In  England,  the  distinction  seems  to  have  arisen  from  the 
circumstance  that  the  writ  to  the  sheriff  to  summon  the  jury 
laid  down  certain  rules  for  his  government ;  such  as  that  the 
persons  summoned  should  be  free  and  lawful  men  of  the 
county,  of  certain  qualifications  in  point  of  property,  by 
whom  the  truth  of  the  matter  might  be  the  better  known, 
and  who  are  in  no  wise  of  kin  to  either  party.  This  writ 
was  supposed  to  specify  all  causes  of  objection  from  partiality 
or  incapacity.  The  word  ''  free "  was  understood  to  mean, 
not  only  one  having  freehold  lands,  but  freedom  of  mind,  — 
one  who  stands  indifferent,  no  more  inclining  to  the  one  side 
than  the  other.  If  the  person  returned  by  the  sheriff  mani- 
festly did  not  come  within  the  intent  of  the  writ,  this  was  a 
principal  challenge  ;  and  the  Court,  on  being  ascertained  of 
the  fact,  declared  the  juror  incompetent.  But  experience 
soon  showed  that  there  might  be  other  circumstances  which 
induced  a  suspicion  of  partiality,  though  no  express  malice  or 
favor.  Here  the  Court  referred  it  to  certain  persons  to  judge, 
in  their  discretion  and  conscience,  whether  the  juror  was 
indifferent  as  he  stood  unsworn.  3  G.  Bacon,  751,  756  ; 
Tidd,  Prac.  Forms,  199 ;  Gilb.  C.  P.  95,  &c.  ;  Co.  Litt. 
156  b ;    Trials  per  Pais,  148. 

Perhaps  our  courts  would  feel  themselves  bound  to  exclude 
the  juror  on  satisfactory  evidence  as  to  the  truth  of  the  fact, 
in  the  case  of  a  principal  challenge  ;  but,  where  the  challenge 
is  of  the  kind  called  challenge  to  the  favor,  they  would  exer- 
cise the  same  wide  range  of  discretion  the  triors  do  in  Eng- 
land.    Co.  Litt.  257  6 ;  3  G.  Bacon,  748. 

In  some  books  we  find  it  laid  down  that,  if  the  juror  hath 
declared  his  opinion   touching  the  matter,   it  is   a  principal 

1  Rollins  V.  Ames,  1821,  2  N.  H.  349;  State  v.  Pike,  1870,  49  N.  H. 
399,  406,  407. 


230  CHESHIRE. 


Temple  v.  Sumner. 


cause  of  challenge.     In  others,  where  the  principal  challenges 
are  professed  to  be  enumerated,  we  find  this  omitted.     3  G. 
Bacon,  756  ;  2  Tidd,  780  ;  Trials  per  Pais,  141  ;  Trial  of  Fries, 
2d  appendix,  42.     But  neither  of  these  quote  any  authority. 
In  one  place  it  is  said,  if  a  juror  declare  the  right  of  one  party, 
or  give   his   verdict  beforehand,   it  is  a  principal   challenge  ; 
but,  if  he  promise  a  party,  this  is  a  challenge  to  the  favor  only. 
Lord    Coke   (Co.   Litt.   157   i)   and   Blackstone   mention,   as 
principal  challenges,  having  given  a  verdict,  but  not  opinion. 
See  also  Fries's  Trial,  2d  appendix,  19,  31,   and    the    books 
referred  to.     The  truth  is,  that  having  previously  declared 
an  opinion  may  afford  evidence,  more  or  less  strong  according 
to  the   circumstances,   of  suspicion  of  bias  or  partiality.     If 
a   man    had    heard   a    cause,  and  should    raerel}''  express  an 
opinion    in    favor    of   one   party,   it   would   afford   but  slight 
evidence   of   bias  or  partiality.^      It  is  laid  down  in   Trials 
per  Pais,  141,  that,  if  a  juror  say  he  will  pass  for  one  party 
because  he  knows  the  verity  of  the  matter,  this  is  no  chal- 
lenge ;  but,  if  it  appear  from  the  circumstances  to  be  from 
favor  and  not  from  knowledge,  it  is  a  good  challenge.     Ex- 
pressions  of  this  sort  are  supposed  to  indicate  malice,  or  at 
least  prejudice,  if  used  by  a  person  after  returned  as  a  juror. 
"The  defendant  is  guilty,   he  shall  be  hanged:"   5  St.  Tr. 
8vo,  125 ;  N.  H.  Laws,  ed.  1797,  110  ;  or,  as  in  the  case  of 
Fries,  "  I    am    not   safe .  at   home    for    the   insurgents ;    they 
ought  all  to  be  hung,  and  particularly  Fries  :  "  3  Dall.  517  ; 
or  these  words,  "  There  will  be  no  safety  in  the  country  till 
the  defendant  is  either  hanged  or  banished : "  Law,  C.  P.  133. 
7  Mod.  57,  cited  in  Bacon,    Trial,  overruled  on  authority  of 
2  Hawk.  P.  C.  589.    This  was  on  motion  for  new  trial.    Curran's 
Speeches,  Rowan's  Trial,  60.    In  2  Hawk.  P.  C.  b.  2,  c.  43,  §  28, 
p.  589,  it  is  said  to  be  a  good  cause  of  challenge  that  the 
juror  hath  declared  his  opinion   beforehand   that  the  party  is 
guilty,  or  will  be  hanged,  or  the  like.    5  St.  Tr.  8vo,  124.     But, 
if  it  shall  appear  that  the  juror  made  such  declarations  from 
his  knowledge  of  the  cause,  and  not  from  any  ill-will  to  the 

1  See  Slate  v.  Pike,  1870,  49  N.  II.  399,  407. 


MAY   TERM,  1808.  231 

Temple  r.  Sumner. 

party,  it  is  no  cause  of  challenge.  Knowledge  is  no  proof  of 
malice,  and  knowledge  of  the  particular  cause  no  exception 
to  a  juror ;  certainly  it  was  none  in  ancient  times.  The  cir- 
cumstances attending  the  transaction  must  determine  whether 
the  juror  is  indifferent  or  not.  5  St.  Tr.  8vo,  125.  Our 
statute  mentions  this  as  a  cause  of  challenge,  ed.  1805,  p.  108. 
Indeed,  it  allows  the  party  to  ask  the  juror  if  he  is  sensible  of 
any  prejudice  in  the  cause.  His  prejudices  may  be  proved, 
and  every  thing  which  goes  to  show  that  he  does  not  stand 
indifferent.  Cases  may  easily  be  supposed  where  it  would  be 
extremely  inconvenient  to  lay  it  down  as  a  rule,  that  the  mere 
dechiiation  of  an  opinion,  especially  a  general  opinion,  should 
disqualify  a  juror.  Trial  of  Fries,  208,  Judge  Peters,  2d 
appendix,  42.  Yet,  in  general,  it  is  better  that  this  exception 
should  prevail  as  a  cause  of  challenge.  There  are  few  men 
who  would  choose  to  have  their  causes  tried  by  men  who  had 
expressed  an  opinion  against  them,  and  fewer  still  who  would 
not  choose  to  have  their  adversary's  cause  tried  by  just  such 
men.  Perhaps  there  are  few  men  who  are  not  influenced  by 
their  own  previous  opinions,  especially  when  they  have  pub- 
licly declared  them.  There  is  in  the  human  mind  a  certain 
obstinacy,  which  leads  men  to  adhere  to  opinions  once  formed. 
When  opinions  have  been  declared,  the  case  is  stronger.  Our 
pride  is  then  engaged  on  that  side.  Stronger  still  wlien  the 
juror  has  been  arbitrator,  juror,  or  indictor  in  the  same  cause. 
Here  he  has  given  a  solemn  opinion,  and,  in  the  two  latter 
instances,  under  oath.  These,  clearly,  are  principal  chal- 
lenges ;  and  yet  it  has  been  held,  that  having  been  arbitrator 
is,  in  some  cases,  no  cause  of  challenge  ;  as  if  he  were  chosen 
indifferently,  not  informed  of  or  acted  in  the  cause.  Gilb. 
C.  P.  95,  &c.  ;  Trials  per  Pais,  146  ;  2  Hawk.  b.  2,  c.  43, 
§  27  ;  Salk.  153. 

II.  Supposing  what  has  been  stated  and  proved  in  this  case 
to  be  good  cause  of  challenge,  good  cause  for  setting  tlie  juror 
aside  as  prejudiced,  or  as  not  standing  indifferent  in  the  cause, 

—  and  I  have  no  doubt  that  it  was  a  good  cause  of  challenge, 

—  the  next  question  is  whether  the  juror  in  this  case  was 
challenged.     If  he  was  challenged,  and  the  challenge  overruled, 


232  CHESHIRE. 


Temple  v.  Sumner. 


it  would  then  seem  to  be  no  cause  for  setting  the  verdict  aside. 
Tlie  defendant  requested  the  juror  to  be  put  to  answer 
whetlier  he  had  formed  and  declared  an  opinion,  &c.  ;  and 
the  answers  were  in  the  nec^ative.  This  was  a  challenging  of 
the  juror.  According  to  our  practice,  no  minutes  of  such 
challenges  are  made  or  entered  on  the  docket.  No  formality 
in  making  a  challenge  is  required.  The  motion  or  request  of 
the  party  to  the  Court,  that  the  juror  may  be  put  to  answer, 
is  a  challenge.  The  party  has  his  election  (and  the  statute 
does  not  take  it  away  ;  it  gives  it  as  the  common  law  did  in 
most  cases)  (a)  to  offer  proof  of  the  challenge,  or  to  put  the 
juror  to  answer  on  his  voir  dire.  If  he  elect  the  latter,  he  is 
precluded  from  going  into  evidence,  and  a  fortiori  precluded 
now  from  going  into  evidence  to  disprove  the  answer.  If  he 
suffers  an  injury  from  taking  this  course,  it  arises  from  his 
own  negligence,  or,  at  least,  from  his  own  act.  If  he 
chose  then  to  pay  the  juror  the  compliment  of  taking  his 
own  declarations  for  evidence  of  his  indifferency  and  im- 
partiality, he  shall  not  now  be  permitted  to  take  a  differ- 
ent course.  He  chose  then  to  treat  the  juror  as  a  gentleman 
of  honor,  an  honest,  fair  man.  He  shall  not  now  con- 
sider him  as  a  knave,  and  as  actuated  by  malice  towards  him. 
This  justice  is  due  to  the  juror.  The  regularity  of  proceedings 
in  courts  of  justice  requires  it.  The  party  might  have  re- 
quired the  juror  to  be  sworn  ;  and,  according  to  our  practice, 
he  might  dispense  with  the  oath  and  take  his  word.  He  would 
have  been  sworn,  if  the  party  had  not  waived  it.  In  this 
examination  it  did  not  appear  to  the  Court  that  the  juror  was 
not  indifferent.  If  the  Court  erred  in  overruling  the  challenge 
(but  in  this  case  there  is  no  pretence  for  such  an  allegation), 
I  have  found  no  case  where  it  has  been  corrected  on  a  motion 
for  a  new  trial  after  verdict.  If  it  be  said  that  the  party 
waived  the  exception  or  challenge,  and  that  there  was  no  formal 

(a)  The  cases  where  the  juror  may  not  be  interrogated  are  those  where 
the  answer  may  be  to  the  discredit  or  disadvantage  of  the  juror.  .'5  Blackst. 
364;  3  G.  Bacon,  764-760;  Salk.  153;  Tidd,  781.  The  question  whether 
he  had  given  his  opinion  seems,  in  some  cases  (I  think  improperly),  to  have 
been  considered  as  an  improper  question . 


MAY   TERM,   1808.  233 

Temple  v.  Sumner. 

challenge  or  regular  decision  upon  it,  it  will  come  to  the  same 
thing;  he  shall  not  now  avail  himself  of  what  he  waived  then. 

Iir.  But  supposing  this  .good  cause  of  challenge,  and  that 
no  challenge  was  made;  or,  if  made,  waived  in  such  sort 
that  the  party  is  not  thereby  precluded  ;  and  supposing 
also,  what  cannot  appear,  that  the  party  did  not  then  know 
of  the  cause  of  challenge,  — it  is  no  ground  for  granting  a  new 
trial. 

It  is  of  importance  that  causes  should  be  tried  by  an  impar- 
tial jury  ;  but  it  is  of  equal  importance  that  there  should  be 
some  end  to  litigation. 

If  it  be  once  established  as  a  principle  that  the  party  shall 
have  the  same  advantage,  on  motion  to  set  the  verdict  aside,  of 
exception  to  a  juror,  as  at  the  time  of  inij)anelling,  there  will 
be  few  challenges,  and  frequent  trials  in  addition  to  the  num- 
ber provided  by  the  profusion,  I  will  not  call  it  liberality,  of 
our  law.  The  party  who  has  a  just  cause  of  challenge  to  a 
juror  will  generally  find  it  his  interest  to  take  his  chance  of  a 
trial.  If  the  verdict  suits  him,  we  shall  hear  nothing  of  the 
exception  ;  if  unfavorable,  we  are  then,  on  this  doctrine,  to  try 
the  cause  over  again,  though  complete  justice  may  have  been 
done  by  the  verdict.     12  Mod.  567,  584. 

There  is  nothing  in  the  books,  or  our  practice,  which  gives 
countenance  to  so  extravagant  a  doctrine.  But  a  distinction 
is  attempted,  and  cases  may  be  found  which  countenance  it, 
that,  if  a  party  did  not  know  of  the  cause  of  challenge  at  the 
time,  he  may  have  the  advantage  of  it  on  a  motion  for  a  new 
trial.  6  G.  Bacon,  66  a  1 ;  7  Mod.  54.  It  would  be  a  suffi- 
cient answer  to  the  doctrine  founded  on  this  distinction,  that 
it  will  generally  be  impossible  to  ascertain  the  fact  of  the 
ignorance  of  the  party.  It  is  easy  to  suppose  that  an  artful 
man  will  conceal  his  knowledge,  that  he  may  turn  it  to  the 
greater  account.  If  the  verdict  is  for  him,  his  knowledge  will 
do  him  no  hurt.  If  against  him,  the  burden  will  be  on  the 
other  side,  to  prove  that  he  knew  of  the  ground  of  objection. 
In  none  of  the  cases  where  this  distinction  has  been  acted  upon 
have  I  been  satisfied  that  the  party  was  as  ignorant  as  he  pre- 
tended to  be.     Sure  I  am,  that  by  using  due  diligence,  he  may 


234  CHESHIRE. 


Temple  v.  Sumner. 


have  sufficient  kIK)\vle(.l^e  of  ull  just  exceptions  to  the  jurors. 
I  speak  of  the  panel  in  our  mode  of  choosing  them. 

We  find  but  little  in  our  books  on  the  subject  of  challenges. 
The  reason  is,  because  the  old  books  of  reports  do  not  give 
anv  account  of  decisions  on  motions.  The  modern  ones  can- 
not ;  such  motions  being  rarely  made  in  a  formal  manner.  So 
many  jurors  are  attending,  that,  in  England,  the  clerk  usually 
calls  only  those  against  whom  there  is  no  objection  on  either  side, 
and  the  Court  are  not  troubled  with  the  matter.  1  Sell.  475, 
476,  503.  Tidd  (II.  816),  in  enumerating  the  principal 
grounds  for  granting  a  new  trial,  does  not  mention,  as  one  of 
them,  the  ground  on  which  the  present  motion  is  predicated. 

I  think,  however,  that,  from  an  examination  of  the  cases,  we 
shall  be  able  to  find  a  rule  clearly  and  distinctly  marked, 
which  must  govern  the  present  case. 

Where  the  writ  oi  venire  facias  was,  by  mistake,  made  return- 
able after  the  assizes,  a  new  trial  was  granted  after  verdict. 
1  Sell.  311 ;  6  G.  Bacon,  660,  &c.  Here  there  was  no  legal  jury 
at  all  ;  and  it  is  laid  down  generally  that  a  venire  facias  de 
novo  may  be  granted  where  the  jury  was  improperly  chosen 
or  returned,  as  well  as  where  they  improperly  conducted 
themselves.  2  T.  R.  126,  notes;  2  Tidd,  830;  2  Strange, 
887  ;  1  Wils.  55.  But  if  the  irregularity  be  such  only  that 
the  return  is  not  void,  but  the  party  may  waive  it,  if  he  go  to 
trial  he  shall  not  avail  himself  afterwards  of  the  irregularity. 
Many  irregularities  or  defects  in  convening,  or  in  the  qualifica- 
tions of,  jurors,  are  aided  after  verdict.  3  G.  Bacon,  772 ; 
Trials  per  Pais,  c.  12,  199-212. 

If  the  under-sheriff  were  attorney  in  the  cause,  and  returned 
the  panel  of  jurors,  a  new  trial  will  be  granted.  1  Sell.  512  ; 
Cowp.  112.  Here  the  jury  was  chosen  and  returned  by  the 
attorney  of  the  party  that  prevailed.  It  was  misbehavior  in 
the  party  to  suffer  his  attorney  to  choose  the  jury,  for  which 
he  well  deserves  to  be  punished  by  the  loss  of  his  verdict. 

A  new  trial  was  granted,  because  the  foreman  of  the  jury 
had  declared  that  the  plaintiff  should  never  have  a  verdict. 
1  Sell.  512  ;  6  G.  Bacon,  GQS ;  Salk.  645.  If  this  declaration 
were  made  (and  it  does  not  appear  from  the  report  when  it 


MAY   TERM,  1808.  235 

Temple  v.  Sumner. 

was  made)  after  the  jury  were  impanelled  (and  the  word 
"foreman  "  in  England  implies  as  much),  it  is  no  authority 
in  favor  of  the  defendant,  for  it  could  not  be  cause  of  chal- 
lenge. And  verdicts  are  frequently  set  aside  for  misbehavior 
of  jurors. 

A  new  trial  was  granted,  because  one  of  the  jurors  declared, 
at  the  view,  that,  by  what  they  had  seen  (and  they  had  seen 
only  for  one  side),  they  should  soon  determine  the  dispute  ; 
and  afterwards,  before  the  trial  in  court,  that,  right  or  wrong, 
he  would  give  the  cause  to  the  plaintiff ;  he  was  a  neighbor. 
Com.  601.  This  decision  was  in  the  Exchequer,  and  against 
the  opinion  of  one  of  the  barons.  Possibly  it  might  be 
considered  that  the  view  made  part  of  the  trial  ;  so  this  was 
misbehavior  at  the  trial,  or  after  the  trial  begun. 

A  new  trial  was  granted  because  one  person  answered  for 
another,  or  to  another's  name,  and  was  sworn  as  a  juror. 
Here  a  person  tried  the  cause  who  was  not  chosen,  or  returned, 
a  juror.  The  cause  was  tried  by  eleven  jurors  only.  This  was 
not  a  matter  of  challenge.  1  Sell.  512 ;  2  Burn,  363  (453)  ; 
1  Sell.  477. 

A  juror  on  the  principal  panel  was  challenged,  and  after- 
wards sworn  on  the  tales  by  a  wrong  name.  A  new  trial  was 
granted.  The  grounds,  if  there  were  any,  on  which  this 
decision  was  made  are  not  stated.  It  is  believed,  however, 
that  it  was  this,  that  a  person  returned  by  a  wrong  name  is 
not  considered  as  returned  at  all,  so  that  there  were  but 
eleven  jurors.  1  Sell.  512 ;  Strange,  640  ;  2  Ld.  Raym.  1410  ; 
6  G.  Bacon,  661  ;  Cro.  Eliz.  429,  430 ;  Trials  per  Pais,  156. 

Cooke  s  Case,  cited  in  Fries's  Trial.  The  question  seems  to 
have  been  whether  good  challenge  or  not.  It  does  not  appear 
that  there  was  any  motion  for  a  new  trial.  5  St.  Tr.  8vo, 
118. 

To  these  may  be  added  tlie  decision  in  United  States  v. 
Fries^  3  Dall.  517.  It  is  sufficient  to  say,  of  this  case,  that  the 
Court  were  equally  divided  in  opinion  ;  and  that  the  opinion 
which  finally  prevailed  neither  gave  satisfaction  at  the  time 
nor  since.  It  was  rather  the  effect  of  the  judge's  extraordi- 
nary humanity  than  the  result  of  his  law  knowledge. 


236  CHESHIRE. 


Temple  v.  Sumner. 


It  seems  in  Connecticut,  at  a  certain  time,  the  distinction 
we  liave  been  considering  was  recognized,  2  Swift,  232  ; 
Kirby,  13,  62,  133,  166,  184,  280.  It  seems,  however,  that 
the  Court  go  into  an  inquiry  whether  the  previous  declara- 
tions of  the  jurors  influenced  the  verdict ;  which  is  certainly 
incorrect. 

But  it  seems  the  same  Court  has  decided,  that  it  is  no  cause 
for  granting  a  new  trial  that  one  of  the  jury  tried  the  cause  in 
the  lower  court,  though  a  good  challenge,  because  it  is  waived  ; 
so  that  matter  which  is  only  challenge  to  the  favor  is  no  cause 
of  granting  a  new  trial. 

Notwithstanding  some  of  the  cases  cited  seem  to  counte- 
nance the  doctrine  contended  for  in  behalf  of  the  motion  in 
the  present  case,  yet  it  is  conceived  that  the  rules  and  general 
principles  of  law  and  practice  are  against  it.  And  a  strong 
argument  may  be  drawn  against  allowing  an  exception  to  pre- 
vail, on  a  motion  for  a  new  trial,  which  would  have  been  good 
by  way  of  challenge,  from  analogy  to  proceedings  in  other  cases. 

Respecting  pleading,  it  is  well  known  that  the  party  may, 
and  often  does,  waive  good  matter  of  defence  by  not  pleading 
specially,  —  matter  of  abatement,  by  not  pleading  it  in  due 
time.  Bad  service,  or  no  service,  of  the  wiit,  is  waived  by 
appearance  and  pleading  over.  The  statute  of  limitations  is 
waived  when  not  pleaded.  Many  exceptions  which  would  be 
good  on  demurrer  are  not  so  in  arrest  of  judgment,  i.  e.  after 
trial ;  not  good  in  error,  for  the  same  reason.  Irregularities 
sufficient  to  overthrow  the  proceedings  are  waived,  if  the 
party  overlook  them  and  take  subsequent  steps.  3  G.  Bacon, 
774  ;  Co.  Litt.  157  b,  158  a  ;  Com.  525  ;  Co.  Litt.  303  ;  Manu- 
script Essay,  Error,  63-73  ;  1  Tidd,  433,  485  ;  1  East,  77,  330  ; 
7  T.  R.  542,  543,  &c. 

And  the  law  respecting  challenges  is,  that  they  must  be 
made  within  certain  times,  or  they  are  waived.  After  a  juror 
is  swoni,  no  cause  of  challenge  can  be  alleged,  except  it  arose 
after  the  swearing,  unless  hy  consent;  a  fortiori  after  verdict. 
Co.  Litt.  158  a;  6  G.  Bacon,  764;  Trials  per  Pais,  152;  2  G- 
Bacon,  492,  493  ;  1  Strange,  70.  So  challenges  must  be  taken  all 
at  once.     2  G.  Bacon,  492,  493.     Being  related  to  the  party  is 


MAY   TERM,  1808.  237 

Temple  v.  Sumner. 

a  principal  cause  of  challenge,  and  yet  we  find  a  new  trial  was 
refused,  and  the  reason  given,  because  the  other  party,  who 
might  have  challenged  this  man,  ought  to  suffer  for  his  neglect. 
6  G.  Bacon,  661.  So,  where  the  juror  had  a  suit  depending 
with  the  plaintiff,  which  is  a  principal  cause  of  challenge 
(Tidd,  780 ;  3  Blackst.  363),  against  whom  the  verdict  was 
found,  a  new  trial  was  refused  ;  and,  by  the  Court,  Why  did 
not  the  plaintiff  challenge  this  man?     6  G.  Bacon,  661. 

It  has  been  often  decided,  that,  if  a  party  does  not  produce 
a  record  of  conviction  to  prove  a  witness  infamous,  he  shall 
not  have  a  new  trial  on  this  account.  For  he  ought  to  suffer 
for  his  neglect.     6  G.  Bacon^  672. 

So  it  is  rare  that  any  objection  to  the  competence  of  a  wit- 
ness is  allowed  to  prevail,  on  motion  for  a  new  trial,  for  the 
same  reason,  unless  the  other  party  be  in  fault.  6  G.  Bacon, 
672;  IT.  R.  717. 

So  a  new  trial  has  been  refused,  where  it  appeared  that  a 
material  witness  made  a  mistake  in  giving  his  testimony  ;  and 
that  on  account  of  the  great  inconvenience  which  would  re- 
sult from  the  contrary  practice.     1  T.  R.  717. 

Our  law  has  furnished  parties  with  all  the  means  of  know- 
ing, before  the  jury  are  impanelled,  every  exception,  every 
thing  which  shows  them  not  indifferent.  They  must  be  chosen 
in  open  meeting ;  six  da3\s,  at  least,  before  the  sitting  of  the 
Court.  If  all  legal  exceptions  are  not  discovered  till  after 
the  Court,  the  other  party,  and  the  public,  have  had  to  en- 
counter the  trouble  and  the  expense  of  a  trial ;  the  law  justly 
imputes  it  to  the  want  of  due  diligence.  Indeed,  there  is  not 
the  same  reason  for  strictness,  as  it  respects  the  qualifications 
of  jurors,  as  in  ancient  times ;  because,  with  us,  the  party  may 
have  three  trials  as  a  matter  of  course ;  and  the  verdict  may, 
after  all  these,  be  set  aside,  if  clearly  against  law  or  evidence, 
independent  of  any  exception  to  tlie  jurors. 

But  this  question  has  been  lately  decided  in  the  Circuit 
Court  of  Pennsylvania,  4  Dall.  354,  on  a  review  of  all  the 
authorities,  that  alienage,  though  a  good  cause  of  challenge 
(2  Tidd,  780),  before  verdict,  is  no  ground  for  a  new  trial. 
So  it  has  been  decided  in  this  State.     In  Gregory  ^  Pickard 


238  CHESHIRE. 


Temple  v.  Sumner. 


V.  Wells,  Grafton,  May  Term,  1807  (reported  in  N.  H.  Laws, 
ed.  1805,  109),  which  was  a  review,  and  the  plaintiff  recovered 
upwards  of  $1,400,  there  was  a  motion  for  a  new  trial,  on  the 
ground  that  one  of  the  jury  who  now  tried  the  cause  on  re- 
view was  on  the  jury  who  tried  the  cause  on  the  appeal,  (a) 
Though  this  undoubtedly  was  a  good  cause  of  princii)al  chal- 
lenge, yet  the  motion  was  overruled,  and  there  was  judgment 
on  the  verdict  the  same  as  before.  3  Blackst.  368  ;  3  G. 
Bacon,  757  ;  6  G.  Bacon,  654,  655.  This  decision  was  made 
in  conformity  to  former  determinations  in  Rockingham  and 
Strafford,  though  I  am  aware  that  there  have  been  contradic- 
tory decisions  in  this  State  on  this,  as  on  most  other  subjects. 
For  my  own  part,  I  see  no  objection  to  laying  it  down,  as  a 
general  rule,  that  what  might  be  taken  advantage  of  by  way 
of  ciiallenge  shall  not  avail  on  motion  for  new  trial,  with  the 
exception  only  of  the  cases  where  there  has  been  gross  mis- 
conduct in  the  other  party  as  well  as  in  the  juror,  such  as 
bribery,  &c. ;  and  the  knowledge  or  ignorance  of  the  party,  as 
to  the  existence  of  the  causes  of  challenge  at  the  time  of 
impanelling  the  jury,  will  make  no  difference  in  the  case. 
Co.  Litt.  157  i,  n.  5  ;  Trials  per  Pais,  146,  147. 

As  the  question  before  the  Court  is  important  to  one  of  the 
parties  at  least,  involving,  as  it  is  said,  the  loss  of  all  his  prop- 
erty, and,  perhaps,  the  property  of  others,  I  have  thought  it 
my  duty  to  give  it  the  fullest  consideration.  As  it  relates  to 
our  practice,  it  is  of  importance  that  the  rule  should  be  settled 
and  known.  Other  motions  for  new  trials  are  addres-sed  to 
the  discretion  of  the  Court,  and  the  Court  will  refuse,  even 
where  there  may  have  been  a  misdirection  of  the  Judge,  im- 
proper evidence  admitted  or  rejected,  if  justice  has  been  done. 
4  T.  R.  468;  3  Wooddes.  353;  Lofft,  Evid.  1198;  3  Blackst. 

(a)  Grafton,  Superior  Court,  May  Term,  1808,  No  23,  JoJin  Porter, 
plaintiff  in  review,  V.  William  Greenorujh.  Verdict  tor  defendant ;  balance, 
set-off,  $29,45;  former  jury  gave  $20.  Motion  for  new  trial,  Ex  parte 
Porter,  because  Jonathan  Curaings,  a  juror  on  this  trial,  sat  as  a  juror  at 
the  Superior  Court,  on  the  trial  on  the  appeal. 

Pkr  Curiam.  This  was  good  cause  of  challenge,  but  no  cause  for  new 
trial.     See  docket  of  that  Term. 


MAY   TERM,  1808.  239 


Temple  v.  Sumner. 


392.  The  trifling  nature  of  the  cause,  the  hardness  of  the 
action,  and  a  variety  of  other  things,  mingle  in  the  considera- 
tion and  decision  of  the  question.  But  it  is  not  so  here.  If 
the  party  has  not  had  a  fair  trial,  and  has  not  waived  his 
exception  by  not  taking  it  in  season,  the  Court  are  bound  to 
grant  a  new  trial.  I  should  have  been  satisfied  witli  the  ver- 
dict, if  it  had  been  the  other  way.  But  this  has  no  influence 
on  my  judgment,  because  what  the  party  now  claims  is  a 
matter  of  right.  It  has  been  my  earnest  endeavor,  and  I  have 
spared  no  pains,  that  he  should  have  a  legal  decision  ;  that  he 
should  have  that  justice  meted  out  to  him  which  is  dispensed 
to  others  in  like  circumstances. 

New  trial  refused;  and  judgment  on  verdict,  {a) 

[The  compiler  has  inserted  here  the  following  condensed 
reports  of  other  cases  in  the  manuscripts,  bearing  on  this 
topic :]  — 

In  Caldwell  v.  Caldwell,  Strafford,  September  Term,  1802, 
there  was  a  verdict  for  defendant.  Motion  for  new  trial,  on 
the  ofround  that  one  of  the  iurors  who  tried  the  cause  at  this 
Term  sat  on  a  former  trial  of  the  same  cause,  in  which  there 
was  a  verdict  for  the  plaintiff  (which  was  set  aside).  The 
motion  was  refused.  The  Chief  Justice  did  not  sit  in  the 
trial  of  this  cause.  In  his  Manuscript  Digest,  the  note  of  this 
decision  concludes  with  the  remark,  "  the  same  juror  had  de- 
cided both  ways." 

In  Gregory  tf  Pickard  v.  Wells,  cited  in  the  opinion  in 
Temple  v.  Sumner,  it  appears  (both  from  the  Manuscript 
Digest,  and  from  the  note  in  Judge  Smith's  copy  of  N.  H. 
Laws,  ed.  1805,  109)  that  the  verdict  on  the  second  trial  was 

(a)  See  11  Mod.  119;  Bull.  307;  6  G.  Bacon,  661-668;  Salk.  645; 
Tidd,  817;  1  Sell.  512. 

[The  following  memoranda  relating  to  Temple  v.  Sumner  may  have 
been  intended  for  insertion  as  a  note :]  — 

Dangerous  to  take  B.'s  account  of  the  matter,  even  on  oath.  May  be 
collusion ;  may  have  been  in  sentiment  against  verdict. 

As  much  business  of  one  side  that  jurors  be  sworn  as  the  other,  —  both 
may  waive  it. 


240  CHESHIRE. 


Temple  v.  Sumner. 


the  same  way  as  upon  the  first  trial.     The  fact  that  one  of  the 
jurors  at  the  second  trial  sat  on  the  first  trial  was  admitted. 

C.  Livermore,  for  Wells. 
Chamberlain,  for  Gregory  &  Pickard. 

Per  Curiam.  This  was  good  cause  of  challenge ;  but, 
being  waived,  it  is  no  cause  for  granting  a  new  trial. 

State  V.  Clarke,  Rockingham,  February  Term,  1809,  was  an 
indictment  for  forgery.  The  defendant,  having  been  con- 
victed, moved  for  a  new  trial,  and  in  arrest  of  judgment. 
These  motions  having  been  overruled,  he  moved  to  set  aside 
the  verdict  because  one  of  the  jury  was  not  duly  chosen  and 
returned. 

Attorney -G-eneral,  for  State. 
Mason,  for  defendant. 

The  Court  intimated  that  it  was  too  late  to  make  this 
motion  after  a  motion  in  arrest  of  judgment;  but  that,  if 
made  at  any  time  after  verdict,  it  was  too  late  ;  and  that 
Temple  v.  Surnner,  determined  in  the  county  of  Cheshire,  was 
an  authority  in  point. 

The  cause  was  continued  for  sentence,  which  was  pro- 
nounced at  September  Term,  1810. 

In  the  Manuscript  Digest,  in  connection  with  the  above 
cases,  reference  is  made  to  Kirby,  184;  Commonwealth  y .  Hus- 
aey,  18  Mass.  221 ;  Knight  v.  Free-port,  13  Mass.  218.1 

^  The  decision  in  Temple  v.  Sumner  is  in  conflict  with  Wiggin  v.  Plumer, 
1855,  31  N.  H.  251,  and  perhaps  with  Tenneyy.  Evans,  1843,  13  N.  H.  462. 

But  it  is  very  strongly  sustained  by  Slate  v.  Howard,  decided  in  1845, 
but  not  reported  until  1864,  17  N.  H.  171,  196-200. 

In  support  of  State  v.  Clarke,  reported  in  the  addenda  to  Temple  v. 
Sumner,  see  the  cases  which  hold  that  objections  to  the  legality  of  the 
drawing  of  a  juror  cannot  be  taken  after  verdict,  if  the  grounds  of  the 
objection  appeared  on  the  venires  and  returns  :  State  v.  Ilascall,  1833, 
6  N.  H.  352;  Bodge  v.  Foss,  1851),  39  N.  II.  406;  Pitlsjield  v.  Barnstead, 
1860,  40  N.  II.  477;  or  if  the  grounds  of  objection  appeared  on  the  records 
of  the  town:  Wilcox  \.  School  District  No.  1  in  Lempster,  1853,  26  N.  H. 
303  (and  see  Wentworth  v.  Farmington,  1871,  51  N.  H.  128). 


SEPTEMBER   TERM,   1808.  241 


Plastow  V.  Kingstown. 


ROCKINGHAM,  SEPTEMBER  TERM,  1808. 


Plastow  v.  Kingstown. 

A  pauper  case  between  the  towns  of  K.  and  P.  turned  on  the  question  whether 
M.  N.  was  to  be  considered  as  living  in  K.  or  P.  during  a  certain  time,  when 
she  lived  on  the  farm  of  one  F. 

Held,  that,  if  it  distinctly  appeared  that  K.  exercised  exclusive  jurisdiction  over 
F.  and  his  farm  during  such  time,  and  that  P.  neither  exercised  nor  claimed  any 
jurisdiction  during  that  time,  M.  N.  must  be  regarded  as  having  then  lived  in 
K.,  however  the  true  divisional  line  between  the  towns  might  run.  And  so, 
if,  after  a  certain  date,  exactly  the  contrary  was  true  as  to  jurisdiction,  M.  N. 
must  be  regarded  as  living,  after  that  date,  in  P. 

This  was  an  appeal  from  the  order  of  three  justices  (made 
on  the  application  of  Kingstown),  charging  Plastow  with  a 
certain  sura  expended  by  Kingstown  in  the  maintenance  of  J. 
E.,  illegitimate  son  of  M.  N. ;  and  ordering  Plastow  to  main- 
tain the  pauper  in  future.  The  pauper  (it  was  admitted  J.  E. 
was  a  pauper)  was  about  three  or  four  years  old.  By  the  act 
of  Jan.  1,  1796,  ed.  1805,  305,  the  pauper  has  the  settle- 
ment his  mother  had  at  the  time  of  his  birth;  so  that  the  only 
question  agitated  at  the  trial  was,  where  M.  N.  was  settled 
four  years  ago. 

Smith,  C.  J.,  summed  up  to  the  jury. 

The  question,  by  the  pleadings,  is,  whether,  at  the  birth  of 
the  pauper,  M.  N.  had  a  settlement  in  Plastow.  It  is  incum- 
bent on  Kingstown  to  establish  this  point,  or  they  fail  in  the 
prosecution.  She  was  born  in  Kingstown  about  twenty-seven 
years  ago,  say  1781.  But,  it  is  alleged,  afterwards,  and  before 
1796,  she  gained  a  settlement  by  residing  more  than  a  3^ear  at 
the  house  of  one  Stephen  Flanders  (the  house  occupied  after- 
wards by  one  David  Flanders),  and  that  this  place  is  within 
the  town  of  Plastow.  Tiiough  under  the  age  of  twenty-one, 
she  was  capable,  when  separated  from  her  father's  family,  of 

16 


242  ROCKINGHAM. 


Plastow  V.  Kingstown. 


gaining  a  settlement  by  habitancy.  The  fact  of  her  living  at 
Flanders's  more  than  a  year,  between  1786  and  1796,  is  admit- 
ted. And  the  only  question  is,  whether  that  house  was  with- 
in Plastow.  What  is  now  Kingstown  and  Plastow  was 
originally  Kingstown,  incorporated  as  such,  near  a  century 
ago.     Plastow  was  set  off  by  lines,  1749. 

As  it  respects  the  question  of  settlement  by  habitancy,  in  a 
case  circumstanced  like  the  present,  there  are  two  ways  of  de- 
termining it:  1.  By  the  actual  exercise  of  jurisdiction  by  one 
of  the  towns  ;    2.  By  evidence  of  charter  lines. 

From  the  evidence,  it  would  seem,  in  this  case,  that,  from  the 
date  of  the  charter  of  Plastow,  1749,  till  1794,  Flanders  was 
poor,  and  his  land  of  little  value  ;  but  both  were  taxed  in 
Kingstown  till  about  1794 ;  and  Flanders  considered  himself 
to  every  purpose  an  inhabitant  of  Kingstown,  and  was  so  con- 
sidered by  Kingstown.  It  does  not  appear  that  Plastow  exer- 
cised any  jurisdiction  till  that  time.  Before  that,  however, 
the  question  had  been  agitated  between  sundry  inhabitants 
and  selectmen  of  the  two  towns.  Plastow  was  desirous  of 
acquiring  this  addition  of  territory  and  inhabitants,  and  Kings- 
town opposed.  The  selectmen  of  the  two  towns,  in  1794, 
perambulated  the  line  and  made  return  of  their  doings,  which 
was  recorded,  but  not  ratified  by  either  town  (it  is  believed 
they  were  recorded  in  the  respective  town  books).  By  this 
perambulation,  Flanders's  house  falls  a  few  rods  within  limits 
of  Plastow.  Since  that,  Kingstown  has  made  no  claim,  and 
exercised  no  jurisdiction.     Plastow  has. 

It  is  not  clear  whether  M.  N.  lived  more  than  a  year  after 
1794  at  Flanders'.     She  did  before. 

It  seems  reasonable  that  the  exercise  of  jurisdiction  should 
determine  the  matter  of  settlement.  By  suffering  a  person  to 
inhabit  in  a  town  more  than  a  year,  without  being  warned  out, 
a  settlement,  at  that  time,  was  gained.  And  the  limits  of  a 
town  may  well  be  supposed  to  be  the  jurisdictional  lines,  (a) 
and  not  the  true  charter  lines,  if  different.  If  Kingstown  ex- 
ercised jurisdiction  over  Flanders  and  his  farm  while  M.  N. 
lived  there,  for  this  purpose  she  may  be  considered  as  living, 

(a)  The  lines  claimed,  and  peaceably  and  undisturbedly  enjoyed. 


SEPTEMBER   TERM,  1808.  243 

Plastow  V.  Kingstown. 

and  consequently  settled,  in  Kingstown.  If  Kingstown  select- 
men wished  to  prevent  it,  they  would  have  warned  her  out. 
Plastow  could  not,  with  any  propriety,  (a)  If,  therefore,  in 
the  opinion  of  the  jury,  Kingstown  exercised  exclusive  juris- 
diction over  Flanders  and  his  farm  till  1794,  and  Plastow 
neither  exercised  nor  claimed  any  jurisdiction  till  that  time, 
and  M.  N.  did  not  reside  more  than  a  year  after  that  in  the 
same  place,  the  leaning  of  my  mind  at  present  is,  that,  in  this 
case,  M.  N.  is  to  be  considered  as  living  in  Kingstown  ;  and  so, 
for  the  same  reason,  if  she  lived  more  than  a  year  in  the  same 
place  after  the  perambulation  of  1794,  she  must  be  considered 
as  living  in  Plastow ;  however  the  true  divisional  line  be- 
tween the  two  towns  may  run.  If  the  jurisdiction  actually 
exercised  does  not  distinctly  appear,  or  if  it  were  of  the  mixed 
kind,  then  it  is  not  conclusive,  and  evidence  of  the  true  line 
must  be  resorted  to.  The  exercise  of  jurisdiction  will  then  be 
evidence  (but  not  conclusive)  as  to  the  true  line. 

It  is  certainly  true  that  the  selectmen,  by  a  perambulation, 
or  by  taxing,  &c.,  cannot  bind  the  corporate  body.  But,  if  no 
objection  is  made,  the  town  may  be  presumed  to  acquiesce, 
and  to  recognize  their  acts.  There  is  no  other  way,  in  many 
cases,  of  proving  the  actual  exercise  of  jurisdiction,  power  over 
persons  and  property,  &c.,  by  a  town. 

The  next  que^ion  will  be,  whether  the  true  line  of  division 

(a)  When  it  is  said  in  the  statute,  ed.  1805,  301,  Prov.  Law,  140,  263, 
that  every  person  who  hath  lived  a  year  in  any  town  or  place  shall  be 
deemed  an  inhabitant,  unless  such  person  shall  have  been  warned  out, 
within  the  year,  by  warrant  from  the  selectmen  of  the  town,  directed  to  a 
constable  thereof,  &c.,  we  are  to  understand  the  town  both  as  to  territory 
and  inhabitants  as  they  then  are,  or  are  reputed  to  be.  Suppose  that, 
after  exercising  jurisdiction  peaceably  to  a  certain  line,  it  should  be  found 
that  the  place  where  the  three  selectmen  and  constable  warning  out 
actually  lived  was  out  of  the  limits  of  the  town.  Would  this  render  such 
proceedings  invalid?  It  is  apprehended  not.  Their  acts,  at  the  time,  were 
the  acts  of  the  town  in  which  they  were  supposed  to  live.  As  Flanders 
was  an  inhabitant  of  Kingstown  for  the  purpose  of  voting,  training,  being 
taxed,  &c.,  he  shall  to  every  other  purpose  be  deemed  so,  and  his  house 
and  land  in  Kingstown.  Suppose  Flanders  sued  as  of  Kingstown,  and 
plead  in  abatement,  179"2,  of  Plastow.  Plea  bad.  He  is  of  Kingstown  for 
this  purpose.  A  plea  of  abatement  for  misnomer  does  not  depend  on 
lines  running,  surveyor's  compass,  &c. 


244  STRAFFORD. 


Smith  V.  Ladd. 


between  Plastovv  and  Kingstown,  according  to  the  charter  of 
Plastovv,  leaves  Flanders's  house  in  Plastow. 

As  this  was  mere  matter  of  fact,  it  is  not  thought  useful  to 
state  the  evidence  or  summing  up. 

N.  B.  Verdict  for  Kingstoivn.  There  had  been  two  former 
trials  between  same  parties:  1st,  respecting  maintenance  of 
M.  N.,  the  mother,  —  verdict,  February,  1807,  for  Plastow  ;  2d, 
respecting  the  maintenance  of  S.  M.,  illegitimate  son  of  M.  N.,  — 
verdict,  September,  1807,  for  Kingstown.  In  this  third  case, 
motion  for  new  trial,  verdict  against  law  and  evidence.  Re- 
fused per  Curiam.  It  does  not  appear  that  jury  decided 
question  of  law  wrong.  There  was  evidence,  on  both  sides,  on 
each  point ;  full,  fair  trial.  Judgment.^ 


STRAFFORD,   SEPTEMBER  TERM,  1808. 


Jonathan  Smith  v.  Elias  Ladd. 

The  horse  of  S.  was  taken  damage  feasant  in  L.'s  cornfield;  and,  there  being  no 
pound  in  tiie  town,  was  confined  in  L  's  barn,  situate  in  the  same  cornfield. 
L.  immediately  sent  S.  the  following  written  notice,  properly  dated,  signed, 
and  directed :  — 

"A  dark-red  horse  is  taken  up  doing  damage  in  my  cornfield,  and  is  impounded; 
the  damage  estimated  at  $2.     The  horse  is  supposed  to  be  yours.  .  .  ." 

S.  immediately  came  to  L.'s  barn,  where  the  horse  was,  and  conversed  with  L., 
but  made  no  objection  to  any  uncertainty  in  the  notice,  or  required  any  more 
particular  information. 

Held,  that,  if  there  was  any  defect  in  this  notice,  it  was  cured  by  S.'e  appearance, 
without  making  any  objections. 

Whether  written  notice  is  necessary  in  all  cases,  quatre. 

In  a  case  of  impounding,  the  report  of  appraisers  appointed  by  a  justice  is  con- 
clusive as  to  the  trespass  and  the  quantum  of  damages. 

Smith,  C.  J.  —  This  is  a  motion  for  a  new  trial  on  question 
reserved  at  the  trial  the  present  Term.  It  is  an  action  of 
trover,  to  recover  the  value  of  a  dark-red  horse,  property  of 

»  S.  P.  Northwood  v.  Durham,  1820,  2  N.  H.  242. 
See  note  to  Currier  v.  Basset,  reported  ante. 


SEPTEMBER   TERM,  1808.  245 

Smith  V.  T>add. 

the  plaintiff,  converted  by  defendant  to  his  own  use,  Sept.  17, 
1805,  at  Sandwich  ;  the  value  is  alleged  to  be  $70. 

Plea  :  the  general  issue. 

On  the  trial,  it  appeared  in  evidence  and  b}'  admissions  of 
the  parties,  that  the  plaintiff  was  once  the  owner  of  the  horse 
in  question ;  that  the  defendant  owned  two  farms,  one  in 
Sandwich,  and  one  in  New  Holderness  ;  the  farm  in  New 
Holderness  is  within  half  a  mile  of  plaintiff's.  The  defend- 
ant, till  spring,  1805,  lived  on  the  Sandwich  farm,  and  his  son 
on  the  New  Holderness  farm ;  but,  at  that  time,  his  house  in 
Sandwich  being  burnt,  he  removed  to  his  farm  in  New  Hold- 
erness, with  his  family,  and  continued  there  till  after  the 
month  of  September,  in  the  same  year.  On  Sept.  16,  1805, 
the  horse  in  question  was  found  in  defendant's  corn  and  field, 
on  the  New  Holderness  farm,  doing  damage  ;  the  defendant 
immediately  took  him  up,  and,  there  being  no  pound  in  New 
Holderness,  confined  him  in  his  barn  or  yard,  which  was  situate 
in  the  same  field  where  the  damage  was  done  ;  and  immedi- 
ately sent  a  written  notification  to  the  plaintiff,  of  which  the 
following  is  a  copy  :  — 

"New  Holderness,  Sept.  16,  1805. 
"JoNA.  Smith,  Sandwich, — 

"  A  dark-red  horse  is  taken  up  doing  damage  in  my  corn  and  field, 
and  is  impounded  ;  the  damage  estimated  at  $2.  The  horse  is  supposed 
to  be  yours.  The  settling  the  costs  and  damages  this  forenoon  will  pre- 
vent further  cost  and  trouble.  Elias  Ladd." 

On  this  notice,  the  plaintiff  immediately  came  to  the  defend- 
ant's barn  or  yard  where  the  horse  was,  and  conversed  with 
the  defendant  on  the  subject,  but  made  no  objection  to  the 
estimate  of  damage,  or  to  any  uncertainty  in  the  notification, 
or  required  any  more  particular  information.  He  did  not 
offer  to  pay  the  damages,  or  any  thing  for  damage  or  charges  ; 
nor  did  he  replevy,  or  apply  to  a  justice  of  the  peace  to  have 
the  damages  appraised. 

On  September  19,  the  defendant  applied  to  a  justice  of  the 
peace  to  have  the  damages  appraised,  which  was  regularly 
done,  and  report  made  to  the  justice,  Sept.  20,  1805  ;  damages 


246  STRAFFORD. 


Smith  V.  Ladd. 


$2.50.  The  plaintiff  still  neglecting  to  pay  the  damages  so 
assessed  and  reported,  and  the  charges  incurred  as  assessed  by 
the  justice,  and  not  replevying,  on  September  26,  the  justice,  by 
his  warrant,  ordered  the  horse  to  be  sold,  for  payment  of  the 
damages  and  costs  (the  costs  being  $7.50,  besides  fifty  cents 
for  the  warrant),  at  public  auction  ;  which  was  done  in  due 
manner,  and  the  horse  was  fairly  sold  for  $6.  The  proceed- 
ings of  the  justice  were  regular  throughout,  and  due  notice 
given  to  the  plaintiff  wherever  such  notice  was  required. 
The  jury  found  for  the  defendant. 

The  plaintiff,  in  the  course  of  the  trial,  made  several  objec- 
tions to  these  proceedings,  which  are  now  to  be  considered. 

I.  He  offered  to  prove  that  the  fences  were  insufficient ; 
that  the  horse  did  not  do  all  the  damage  which  was  considered 
by  the  appraisers,  part  of  that  damage  only  [?]  was  done  by 
other  creatures  ;  that  the  appraisers  did  not  estimate  the  dam- 
age at  the  sum  reported,  but  at  $1  only ;  that  Ladd  himself 
wrote  the  report,  and  inserted  $2.50  instead  of  $1,  &c. 

This  evidence  was  not  admitted.  The  Court  were  of 
opinion  that  the  report  was  final  and  conclusive,  between  the 
parties,  as  to  the  trespass  and  as  to  the  damages.  Smith  might 
have  had  the  damages  appraised,  if  he  had  so  pleased  ;  or  he 
mi"-ht  have  attended  the  appraisers  appointed  at  the  instance 
of  Ladd,  or  on  the  return  to  the  justice,  (a)  This  ex  parte 
hearing  is  as  conclusive  as  if  both  parties  had  attended,  as  bind- 
ing as  a  judgment  of  court;  we  cannot  now  inquire  into  the 
merits.  I  do  not  know  that  we  can  now  inquire  into  the  fact 
of  an  alteration  made  by  Ladd  as  alleged.  The  time  for  such 
an  inquiry  was  when  the  report  was  offered  to  the  justice.  But, 
as  to  this  point,  the  evidence  was  gone  into  by  consent,  and 
the  jury  have  acquitted  Ladd  of  the  improper  conduct  attrib- 
uted to  him.  As  to  these  particulars,  I  see  no  reason,  on  a 
careful  reconsideration  of  the  whole  matter,  to  be  dissatisfied 
with  the  opinion  of  the  Court,  or  the  verdict  of  the  jury. 

IL  But   the   principal  objection   was,  that  the   notification 
was  not  such  as  the  statute  requires  ;   that  it  does  not  describe 

(a)   Qucere.     What  would  that  avail?     It  does  not  appear  justice  has 
any  thing  to  do  with  the  report;  cannot  recommit,  or  refuse  to  accept. 


SEPTEMBER   TERM,   1808.  247 

Smith  V.  Ladd. 

with  sufficient  certainty  the  damage  done,  the  time  when  and 
the  place  where  it  was  done,  where  the  horse  was  impounded, 
and  the  charges  then  accrued.  At  the  trial,  the  Court  ex- 
pressed an  opinion  that  the  notification  was  sufficient,  and  the 
jury  have  decided  agreeably  to  that  opinion.  The  question  is 
whether  that  decision  be  correct  or  not. 

The  intention  of  the  statute  is  that  such  notice  shall  be 
given  that  the  owner  may  know  what  has  become  of  his 
creature  ;  may  have  an  opportunity  of  obtaining  it  again  by 
paying  the  damages  estimated  and  charges  incurred,  or  have 
the  damages  appraised  by  indifferent  persons  ;  or,  if  he  should 
be  of  opinion  that  no  trespass  was  committed,  that  he  may 
replevy  the  creature  impounded.  The  statute  does  not  require 
that  notice  of  the  place  of  impounding  (a)  should  be  in  writ- 
ing. In  this  case,  it  is  clear,  sufficient  notice  was  given  of  that 
fact ;  for  the  plaintiff  saw  the  horse  in  the  defendant's  barn  or 
yard.  Does  this  notification  certify  the  owner  of  the  damage 
done  ?  It  tells  him  that  the  horse  has  done  damage  in  defendant's 
corn  and  field,  which  he  estimates  at  $2.  This  is  sufficient 
for  all  the  purposes  contemplated.  It  is  as  descriptive,  though 
not  so  technical,  as  a  declaration  in  trespass  quare  clausum 
/regit.  Does  it  certify  the  plaintiff  of  the  time  when,  the 
place  where,  the  trespass  was  committed  ?  It  says  the  horse 
is  taken  up,  this  Sept.  16,  1805,  in  my  cornfield,  doing  damage. 
Is  not  this  equivalent  to  saying  the  damage  was  done  Sept.  16, 
1805  ;  and  is  not  this  as  certain  description  of  the  time  as  a 
declaration  in  trespass  ?  Indeed,  in  trespass,  the  proof  may  be 
of  any  d*iy  before  the  action  brought.  A  reasonable  construc- 
tion must  be  given  to  the  words  of  the  statute.  It  does  not 
require  the  hour  to  be  mentioned  ;  the  day  is  sufficient.  The 
place  is  described,  —  ni}-  corn  and  field.  It  is  sufficient,  if  the 
owner  have  such  information  that  he  may  examine  for  him- 
self. The  parties  lived  within  half  a  mile  of  each  other.  The 
notification  does  not  say,  '"  my  farm  in  New  Holderness  ;  "  but 
he  lived  there,  as  plaintiff  well  knew.  His  farm  in  Sandwich 
was  at  the  distance  of  three  miles,  and  he  did  not  live  upon  it- at 

(a)  The  place  in  which  the  creatures  impounded,  common  pound,  or 
impounder's  barn,  &c. 


248  STRAFFORD. 


Smith  V.  Ladd. 


the  time.  Could  plaintiff  suppose  he  meant  that  ?  A  case 
may  be  supposed  where  a  notification  in  this  form  would  be 
uncertain.  Suppose  he  owned,  in  New  Holderness,  ten  farms, 
instead  of  one,  and  lived  on  neither,  but  boarded  at  another 
place.  As  the  statute  prescribes  no  form  of  notice,  it  is  suffi- 
cient if  reasonable  notice  be  given  in  each  case.  What  would 
be  sufficient  in  one  case  might  not  be  so  in  another.  It  is 
further  objected  that  the  charges  are  not  specified.  As  none 
are  specified,  it  would  seem  clear  that  none  would  have  been 
demandable  if  Smith  had  elected  to  tender  and  replevy,  or  sue. 
But  he  did  neither. 

It  is,  therefore,  my  opinion  that,  circumstanced  as  the 
present  case  is,  giving  a  reasonable  construction  to  the  statute, 
the  notification  is  sufficiently  certain. 

Cases  may  be  supposed  where  no  notification  in  writing 
would  be  necessary  at  all.  Suppose  the  owner  present  all  the 
time,  see  the  horse  doing  damage,  see  him  impounded  in  the 
barn  or  yard  in  the  same  field,  and  the  owner  tell  him,  at 
the  time,  he  estimates  the  damage  at  $1.  The  most  that  could 
be  taxed  for  charges  in  such  case  would  be  one  penny,  which 
the  impounder  waives  demanding.  Though  the  statute  speaks 
of  a  written  notification,  yet,  where  the  end  to  be  accomplished 
is  already  answered  without,  it  is  unnecessary.  It  has  been 
holden  in  this  State,  in  a  matter  of  much  greater  consequence, 
and  where  the  words  of  the  statute  are  both  positive  and 
negative,  yet  that  they  may  be  dispensed  with.  I  allude  to 
the  regivstering  of  conveyances.  The  statute  says  they  shall 
be  registered  to  make  them  valid  to  pass  lands,  and  not  good 
without ;  and  yet  it  has  been  held  that,  where  the  end  to  be 
answered  by  registering,  viz.  notice,  is  accomplished  without, 
the  deed,  against  the  words  of  the  statute,  is  good,  though  not 
registered.  But,  independent  of  this,  and  on  other  grounds, 
I  am  of  opinion  that  this  notice  would  be  good,  though  not 
certain  enough  in  itself.  I  mean  that  the  defect  was  cured 
by  appearance  (a)  and  no  objection  made.  An  uncertain 
declaration  or  bad  service  is  cured  by  appearance  and  plead- 
ing   to  the  merits.     The  case  of  tender  is  stronger  than  the 

(a)  Attendance  at  the  place  on  the  notice. 


OCTOBER   TERM,   1808.  249 


Jones  V.  Coos  Bank. 


present.  Tender  in  bank  bills  is  not  good.  But,  if  the  party 
make  no  objection  at  the  time,  it  is.  So  here,  if  this  notification 
is  uncertain,  as  it  produced  an  appearance,  and  was  not  objected 
to  in  the  time  of  it,  it  is  now  too  late  [to  object.] 

New  trial  rt^fused.     Judgment  on  verdict.'^ 


GRAFTON,   OCTOBER  TERM,   1808. 


Nehemiah  Jones  v.  Coos  Bank. 

In  an  action  of  assumpsit  against  a  bank,  on  a  note  issued  by  the  bank,  held:  de- 
fendants bound  to  pay  notes,  wiien  presented,  in  a  reasonable  time ;  when  a 
number  of  bills  are  presented,  defendants  should  be  allowed  as  much  time  to 
count  and  pay  specie  for  them  all  as  it  would  take  to  receive  the  same  amount 
in  specie,  and  give  the  same  number  and  amount  of  bills  in  exchange ;  the  bank 
cannot  claim  the  right  of  paying  each  bill  separately  ;  bank  may  establish 
reasonable  hours  for  transacting  business  at  the  bank ;  evading  payment  is  a 
neglect  and  refusal  to  pay. 

Appeal  from  justice  of  the  peace. 
Assumpsit.     There  were  two  counts. 

1.  Money  had  and  received,  Oct.  21,  1807. 

2.  On  promissory  note  made  by  bank,  July  4,  1806,  $7. 
Plea :  the  general  issue. 

At  the  trial.  May  Term,  1808,  the  plaintiff  proved  that  he 
presented  this  note,  with  others,  at  the  bank,  Oct.  21,  1807, 

1  As  to  the  sufficiency  of  notices  relative  to  impounding,  see  Drew  v. 
Spauldinf,,  1864,  45  N.  H.  472 ;  Mclntire  v.  Marden,  1838,  9  N.  H.  288. 

As  to  the  effect  of  an  omission  to  give  proper  notice,  see  Kimball  v. 
Adajns,  1825,  3  N.  H.  182;  Stnith  v.  Brown,  1817,  1  N.  H.  36;  Mclntire  v. 
Marden,  1838,  9  N.  H.  288;   Young  v.  Rand,  1847,  18  N.  II.  569. 

The  report  of  the  appraisers  was  conclusive  under  the  Revised  Statutes, 
as  under  the  statute  of  1791.  Osgood  v.  Green,  1856,  33  N.  H.  318,  326, 
328. 

The  justice  is  the  mere  depositary  of  the  report;  and  no  notice  of  the 
time  and  place  where  the  report  will  be  delivered  to  him  is  necessary  to  be 
given  to  the  parties.     Osgood  v.  Green,  ubi  sup. 


250  GRAFTON. 


Jones  V.  Coos  Bank. 


amount  $1,500,  and  requested  specie ;  was  at  the  bank  from 
9  to  12.30.  Cashier  paid  $200  or  $300,  in  the  course  of  the 
forenoon,  in  change  and  crowns ;  refused  to  pay  any  other 
way  than  one  bill  at  a  time.  (It  is  not  necessary  to  state  the 
evidence.  It  was  clear  that  the  cashier  evaded  payment ;  de- 
layed unreasonably  ;  at  12.30,  refused  to  pay  any  more  that 
day,  &c.) 

Smith,  C.  J.,  summed  up. 

He  said :  Jury,  to  find  for  plaintiff,  must  be  satisfied  that 
the  notes  were  offered  at  the  bank  for  payment  in  specie : 
2  Selw.  787  ;  that  payment  was  requested.  Evidence  on  this 
point  very  clear. 

Jury  must  also  be  satisfied  that  defendants  have  neglected 
and  refused  payment.  Defendants  were  bound,  in  a  reason- 
able time,  to  count  the  bills  offered,  and  to  count  or  weigh  the 
specie.  Holder  has  a  right  to  expect  promptness,  such  as  banks 
use  in  their  other  transactions.  They  should  be  allowed  as 
much  time  to  redeem  these  bills  as  it  would  take  to  receive 
$1,500  in  specie,  and  give  the  same  sum  in  bank  notes,  in  ex- 
change. Bank  has  no  right  to  insist  on  paying  bill  by  bill. 
They  may  establish  reasonable  hours  for  transacting  business 
at  the  bank,  (a)  Jury  will  consider  whether  there  was  not,  in 
this  case,  time  enough  to  have  redeemed  all  the  notes  offered 
before  bank  shut  up,  Oct;  21  ;  whether  there  was  not  evidence 
of  unreasonable  delay,  a  disposition  to  evade  payment.  If  so, 
there  was  sufficient  evidence  of  neglect  and  refusal. 

Jury  have  no  concern  with  character  of  either  party.  Plain- 
tiff's rights  and  defendant's  duties  are  all  that  the  jury  ought 
to  regard.     There  is  no  room  for  doubt  as  to  facts  or  law. 

Jury  found  for  plaintiff.^ 

(a)  A  person  who  takes  a  bank  note  impliedly  agrees  to  present  it  for 
payment  at  the  bank,  within  the  usual  banking  hours  at  the  pUce  where 
made  payable.     Selw.  787. 

1  An  opinion  was  subsequently  delivered  upon  a  motion  as  to  costs  in 
the  above  and  other  similar  cases  ;  but  there  is  no  mention  of  any  excep- 
tions to  the  charge. 


OCTOBER   TERM,   1808.  251 


State  V.  Stevens. 


State  v.  David  Stevens. 

Debt  lies  on  a  recognizance  to  the  State. 

The  declaration  in  debt  on  recognizance  need  not  state  the  occasion  of  taking  the 
recognizance. 

Debt   on  recognizance  ;  for  that  the  said  David  Stevens, 

before  C.   H.,  Esq.,  one  of  our  justices  assigned,  &c.^  at , 

in  said  county,  on ,  acknowledged  himself  indebted  to  the 

State  of  New  Hampshire  in  the  sum  of  $25,  to  be  levied  on  his 
goods  and  chattels,  lands  and  tenements,  and,  for  want  thereof, 
on  his  body  ;  on  condition,  nevertheless,  that  if  one  B.  S.,  of 

,  should  personally  appear  before  the  aforesaid  C.  H.,  Esq., 

&c.,  at ,  on ,  to  answer  to  the  matters  and  things  which 

should  then  and  there  be  objected  against  him  by  S.  H.,  of 

,  in  behalf  of  said  State,  concerning  an  assault  made  upon 

her,  the  said  S.  H.,  and  other  misdemeanors  tending  to  the 
breach  of  the  peace,  and  should  do  that  which  should  then  and 
there  be  enjoined  upon  him  by  the  said  justice,  and  should  be 
of  good  behavior  to  all  the  citizens  of  the  State  of  New  Hamp- 
shire, especially  towards  the  said  S.  H.,and  not  depart  without 
license,  then  the  aforesaid  recognizance  to  be  void  and  of  none 
effect,  otherwise  in  full  force  and  effect ;  as,  by  the  record  of 
said  recognizance  with  the  said  C.  H.  remaining,  appears,  an 
authenticated  copy  of  which  is  in  court  to  be  produced  ;  and 

at  a  court  holden  by  the  said  justice,  on ,  at ,  upon 

hearing  the  complaint  of  the  said  S.  H.,  on  behalf  of  said  State, 
touching  the  matters  and  things  then  and  there  by  her  alleged 
against  the  said  B.  S.,  and  examination  thereon  being  had,  the 
said  B.  S.  was  ordered  by  our  said  justice  to  recognize  himself 
in  the  sum  of  $100,  with  two  sufficient  sureties,  in  the  sum 
of  $50  each,  for  the  appearance  of  the  said  B.  S.  before 
our  justices  of  our  Superior  Court  of  Judicature  then  next 

to   be   holden  at ,  on ,  to  answer  to  such  things  as 

should  then  and  there  be  objected  against  him  in  behalf  of  said 
State  ;  and  the  said  B.  S.  did  then  and  there  refuse  to  recog- 


252  GRAFTON. 


State  V.  Stevens. 


nize,  as  he  was  ordered  as  aforesaid,  and  did  then  and  there 
depart  from  the  court  then  and  there  holden  before  our  said 
justice,  without  license,  in  contempt  of  the  authority  of  our 
said  justice,  contrary  to  the  tenor  of  the  recognizance  aforesaid 
of  said  David  Stevens  ;  and  the  said  David  Stevens,  being  then 
and  there  three  times  solemnly  called  to  bring  the  body  of 
said  B.  S.  into  court  then  and  there  holden  before  our  said 
justice,  did  not  bring  the  body  of  the  said  B.  S.  when  called 
upon  so  to  do,  but  then  and  there  made  default,  whereupon 
the  recognizance  aforesaid  of  the  said  David  Stevens  became 
and  was  forfeited,  and  was  then  and  there  adjudged  and 
declared  forfeited  by  our  said  justice  ;  all  which,  by  the 
record  thereof,  with  the  said  justice  remaining,  appears  ; 
whereby  an  action  hath  accrued  to  said  State  to  demand  and 
have  of  said  David  Stevens  the  aforesaid  sum  of  $25  at  said 

;  yet,  though  often  requested,  said  David  has  never  paid 

the  same,  but  unjustly  detains  it ;  to  the  damage  of  the  said 
State  of  New  Hampshire,  as  they  saj',  the  sum  of  $60. 

To  this  declaration  the  defendant  demurred,  and  assigned 
for  causes :  — 

1.  That  it  does  not  appear  that  any  suit,  prosecution,  or 
process  had  been  instituted,  and  was  pending  before  the  jus- 
tice, against  the  said  B.  S.,  or  any  other  person,  when  the 
recognizance  was  entered  into  ;  or  that  B.  S.,  or  any  other 
person,  had  been,  or  then  was,  brought  before  the  said 
justice,  to  be  examined  or  tried  for  any  criminal  offence. 

2.  It  does  not  appear  that  the  justice  was  authorized  to  take 
any  recognizance  when  he  took  this. 

3.  By  law,  no  action  of  debt  lies  on  such  recognizance. 

4.  That  the  declaration  is  bad,  insufficient,  informal,  &c. 
Joinder  in  demurrer. 

Noyes,  for  plaintiffs. 
Webster,  for  defendant. 

The  opinion  of  the  Court  was  now  delivered  by  Smith,  C.  J. 

[He  first  stated  the  substance  of  the  declaration,  and  then 

continued  as  follows :]    It  seems  to  be  admitted  that  C.  H. 


OCTOBER   TERM,  1808.  253 

State  V.  Stevena. 

was  a  justice  of  the  peace,  and  that,  under  certain  circum- 
stances, he  was  empowered  to  take  recognizance  ;  but  it  is 
contended  that  this  declaration  does  not  state  a  case  of  that 
description. 

By  the  statute  of  Feb.  9,  1791,  N.  H.  Laws,  ed.  1805,  55 
(he  has  the  same  authority  at  common  law  in  this  State), 
when  any  persons  brought  before  a  justice  for  examination  or 
trial,  he  may  postpone  the  matter  to  a  future  day,  and  he  may 
take  a  recognizance  of  the  party,  for  his  appearance  before  him 
at  such  future  day,  in  the  same  manner  as  the  sessions  and 
this  court  may  do.^  If  he  may  take  a  recognizance  of  the 
party,  any  other  may  lawfully  recognize  for  him.  He  may 
order  sureties.  David  Stevens,  in  this  case,  was  probably  a 
surety.  He  may  take  this  recognizance  in  the  same  manner 
as  this  court  may  do.  In  such  case,  the  recognizance  in  this 
court  does  not  state,  nor  need  a  declaration  upon  it,  how  the 
party  came  before  the  court ;  whether  on  complaint  and 
recognizance  before  a  justice  of  the  peace ;  on  indictment  and 
capias  ;  on  voluntary  act ;  or  by  order  of  the  court  when  no 
prosecution  pending.  And,  for  the  same  reason,  it  need  not 
state  these  things  when  taken  before  a  justice  of  the  peace. 
The  party  submitted  to  the  justice's  order  to  recognize,  and 
shall  not  now  object.  If  the  order  was  illegal,  he  might  have 
refused,  and,  if  committed,  have  had  a  habeas  corpus  and 
obtained  his  discharge  ;  or,  if  the  act  of  the  justice  was  wanton 
and  malicious,  he  would  have  remedy  by  action. 

Besides,  there  may  have  been  good  cause  for  this  recogniz- 
ance, and  yet  no  prosecution  instituted  or  pending  before  the 
justice  at  the  time.  Suppose  the  justice  saw  the  assault  on 
S.  H,,  or  heard  B.  S.  threaten  to  kill  her,  &c.  In  such  case 
he  might  lawfully  order  B.  S.  to  recognize  for  his  appearance 
before  him,  at  a  future  day,  to  answer,  &c.,  and,  in  the  mean 
time,  to  be  of  good  behavior.  Such  a  case  would  be  properly 
described  in  this  declaration.  And  if  there  is  any  possible 
case  in  which  the  recognizance  may  have  been  lawfully  taken, 
it  is  sufl&cient. 

^  As  to  the  authority  of  justices  of  the  peace  to  take  recognizances,  see 
Bell,  C.  J.,  in  State  v.  Eastman,  1860,  42  N.  H.  265,  267-273. 


254  GRAFTON. 


State  V.  Stevens. 


But  I  form  my  opinion  on  the  ground  first  stated,  that,  in 
debt  on  recognizance,  it  is  not  necessary  to  state  the  occasion 
of  taking  the  recognizance.  As  it  is  a  debt  solemnly  acknowl- 
edged before  a  court  of  justice,  it  is  presumed  to  be  a  lawful 
transaction,  and  binding,  till  the  contrary  is  shown,  (a) 

It  is  further  objected  that  debt  does  not  lie  on  recognizance. 
The  authorities  are  the  other  way.  Com.  Dig.  Debt,  A.  3  ; 
4  Blackst.  253  ;  Tidd,  237,  238,  994 ;  Cro.  Eliz.  608,  817  ; 
3  Wooddes.  96;  2  Selw.  467;  1  Wilson,  284;  Com.  Dig. 
Pleader,  2  W.  10.  (6)  Judgment  for  the  State.^ 

(a)  A  declaration  on  a  bond  or  other  specialty  [or  record]  need  not 
state  how  the  debt  accrued,  otherwise  than  the  making  of  the  obligation, 
the  rendering  of  the  judgment,  &c. ;  not  the  consideration,  suit,  &c. 

Sed  vide  Willes,  18,  19. 

(6)  Debt  is  sometimes  brought  upon  a  recognizance  of  bail:  1  Chitty, 
104;  2  Chitty,  PI.  177-181;  but  the  remedy  against  bail  is  more  frequently 
by  scire  facias.     Willes,  18. 

Debt  lies  on  recognizance.  See  Gilbert's  Cases,  Essay  on  Action  of 
Debt,  394,  395. 

Debt  doth  lie  on  recognizance  for  good  behavior.  1  Hall's  Law  Jour. 
286. 

^  I.  Commonwealth  v.  Green,  1815,  12  Mass.  1,  is  a  direct  decision  that 
debt  lies  on  a  recognizance  to  the  State.  In  State  v.  Davis,  1862,  43  N.  H. 
600,  and  State  v.  Chesley,  1828,  4  N.  H.  366,  no  objection  was  raised  to 
this  form  of  action. 

II.  Upon  the  question  whether  the  occasion  of  taking  the  recognizance 
should  have  been  stated  in  the  declaration,  the  authorities  are  not  unani- 
mous. Slate  V.  Stevens  is  sustained  by  Champlain  v.  People,  1848,  2  N.  Y. 
(Comstock)  82,  and  People  v.  Kane,  1847,  4  Denio,  530. 


FEBRUARY   TERM,  1809.  255 


Doe  V.  Morrell. 


ROCKINGHAM,   FEBRUARY   TERM,   1809. 


Samuel  Doe  v.  Benning  Morrell. 

D.  and  M.  each  owned  one-half  of  a  dwelling-house.  Jt  had  been  built  all  to- 
gether ;  two  rooms  on  the  floor,  chimney  in  the  middle,  entry  on  the  front  side, 
from  which  stairs  to  both  chambers,  and  entrance  into  both  rooms.  D.'s  title 
to  his  part  was  under  a  set-off  on  execution.  The  division  was  by  an  imaginary 
line  running  through  the  middle  of  the  front  door,  entry,  stairs,  chimney,  &c. 
The  house  was  old,  and  needed  repairs.  M.'s  part  was  not  worth  repairing; 
but  D.'s  part  was  tenantable.  The  fire-wards,  upon  view  of  M.'s  part,  were  of 
opinion  that  it  was  dangerous  for  want  of  repairs,  and  ordered  it  to  be  repaired, 
or  otherwise  rendered  not  dangerous  on  account  of  fire.  M.  took  down  his 
part  to  the  line.  He  left  half  the  materials  of  the  entry  for  D. ;  sawed  through 
the  plate,  girts,  stairs,  &c.,  but  did  not  take  down  the  chimney.  He  did  these 
things  carefully,  doing  as  little  damage  as  possible  to  D.'s  part  of  the  house. 

Held,  tiiat  D.  could  maintain  trespass  against  M. 

This  was  trespass,  (a)  for  breaking  into  plaintiff's  dwelling- 
house  in  Portsmouth  ;  tearing  down  doors,  walls,  stairs,  &c., 
carrying  away  part,  &c. 

Plea :  general  issue  ;  with  leave  to  give  special  matter  in 
evidence. 

At  the  trial,  February  Term,  1808,  it  appeared  in  evidence 
that  the  plaintiff  and  defendant  owned  a  dwelling-house.  It 
had  been  built  all  together,  two  rooms  on  the  floor,  chimney 

(a)  Matts  V.  Hawkins,  5  Taunt.  20.  Adjoining  owners  are  not  tenants 
in  common  in  a  party-wall,  although  erected  at  their  joint  expense ;  and 
one  may  maintain  trespass  against  the  other  for  pulling  down  his  part. 
The  property  in  the  wall  follows  the  property  in  the  land,  ut  semble. 

See  8  Went.  PI.  544;  trespass  on  the  case  for  pulling  down  two 
houses  which  stood  on  each  side  of  plaintiff's  house,  whereby  plaintiff's 
house  was  exposed  to  the  weather,  &c. 

Declaration  for  not  rebuilding  within  a  reasonable  time  party-wall 
pulled  down  by  defendant,  owner  of  house  contiguous  to  plaintiff's,  for 
the  purpose  of  rebuilding  his  (defendant's)  house.     8  Went.  PI.  558. 


256  ROCKINGHAM. 


Doe  V.  Morrell. 


in  the  middle,  entry  front  side  the  chimney,  outside  door, 
stairs  up  to  the  chambers.  The  part  which  plaintiff  owned 
had  been  set  off  on  execution  some  years  before.  Plaintiff 
claimed  under  the  levy.  They  (sheriff  and  appraisers)  di- 
vided by  an  imaginary  line,  running  through  the  middle  front 
door,  entry,  through  the  stairs,  chimney,  &c.i  The  whole 
house  was  now  old  and  out  of  repair,  and  defendant's  part  not 
worth  repairing  ;  but  the  plaintiff's  part  was  tenantable. 
The  fire-wards  viewed  defendant's  part,  and  were  of  opinion 
that  it  was  dangerous  for  want  of  repairs  — it  was  untenanted 
and  untenantable.  They  ordered  it  to  be  repaired  (or  other- 
wise rendered  not  dangerous  on  account  of  fire).  The 
defendant,  at  the  time  mentioned  in  the  declaration,  August, 
1807,  took  down  his  part  to  the  line.  He  did  it  carefully 
and  prudently,  doing  as  little  damage  to  the  plaintiff  as  he 
could.  He  left  half  the  materials  of  the  entry  for  the 
plaintiff;  sawed  through  the  plate,  girt,  stairs,  boards,  &c.  ; 
but  did  not  take  down  the  chimney. 

On  these  facts,  which  were  either  proved  or  admitted,  the 
question  was,  whether  defendant  was  liable  in  any  action  ; 
and,  if  in  any,  whether  it  should  not  have  been  case  and  not 
trespass.  It  was  agreed  that  the  jury  should  be  instructed 
that  the  action  lies,  and  that  they  should  estimate  the  dam- 
ages ;  and  that  the  verdict  should  be  entered,  subject  to  the 
opinion  of  the  Court  whether,  on  the  evidence  as  stated  in 
the  Chief  Justice's  minutes,  this  action,  in  point  of  law,  could 
be  maintained. 

The  jury  estimated  the  damages  at  $50. 

At  this  Term,  Mr.  Freeman  and  Mr.  Mason  were  heard  for 
the  defendant.  They  cited  Syst.  Pleading,  63  ;  Buller,  26, 
79;  1  Strange,  634;  s.  c.  8  Mod.  272;  2  Wils.  313  ;  2  Burr. 
1114,  to  show  that  trespass  did  not  lie.  They  denied  that 
any  action  lay.  The  defendant  owned  to  the  line.  He 
was  the  exclusive  owner,  and  not  tenant  in  common  with  the 
plaintiff.      But,  if  he  had   no  right  to  do  what  he  had  done 

^  The  validity  of  such  a  levy  i.s  affirmed  in  Tij/'t  v.  Walker,  1839, 
10  N.  11.  150. 


FEBRUARY   TERM,   1809.  257 

Doe  V.  Morrell. 

(open  one  side  of  plaintiff's  house  and  let  in  the  air  and 
storm),  the  act  was  done  on  defendant's  own  land  and  to  his 
own  timber  ;  the  damage  was  merely  consequential. 

Webster  for  plaintiff. 

Smith,  C.  J.  I  have  taken  some  pains  to  examine  the 
books  in  relation  to  this  case,  since  the  trial,  but  have  not  met 
with  much  success.  I  am  inclined  to  think  that  each  of  the 
parties  were  interested  in  the  entry,  stairs,  chimney,  &c., 
and  that  neither  could  destroy  these  without  the  consent  of 
the  other ;  that  each  of  these  owners  was  under  an  obligation 
to  the  other  to  keep  his  part  in  repair,  at  least  so  far  that  the 
tenement  of  the  other  should  suffer  no  injury  from  want  of 
such  repair,  (a)  It  may  be  likened  to  the  case  of  a  party- 
wall,  which  neither  owner  can  remove.  1  Domat,  ^06,  308  ; 
1  Sehv.  355;  1  Dall  341,  346;  Co.  Litt.  §  323,  pp.  54  b,  200, 
a,  b  ;  Esp.  411.  See  statute  11  Geo.  I.  c.  28  (6  Anne,  c.  31 ; 
37  Anne,  c.  17),  proceedings  in  pulling  down  an  old  ruinous 
party-wall. 

From  the  nature  of  the  thing,  these  parties  must  be  con- 
sidered as  interested,  as  it  were,  in  common,  in  the  entr}^ 
chimney,  stairs,  &c. ;  and  neither  could  destroy  that  in  which 
the  other  had  a  valuable  interest. 

Doe  had  an  easement,  or  right  of  enjoyment,  of  that  part 
of  the  entry  which  was  beyond  the  middle  line,  which  does 
not  depend  on  the  courtesy  of  defendant  ;  it  is  a  matter  of 
right.  It  is  for  the  interest  of  both  parties  that  this  should 
be  the  case.  It  may  be  said  the  owner  may  do  what  he  will 
with  his  own  ;  but  this  is  to  be  understood  with  this  reason- 
able  restriction,   that  he  shall  not  thereby  hurt  another  or 

(a)  If  one  man  have  an  house  adjoining  to  mine,  and,  for  want  of 
repair,  his  house  annoys  mine,  I  shall  have  a  writ  against  him  de  repara- 
tione  faciendd.  F.  N.  B.  127.  If  Doe  could  compel  Morrell  to  repair, 
clearly  Morrell  cannot  plead,  as  a  justification  for  pulling  down,  that  his 
part  was  out  of  repair. 

It  is  apprehended  case  would  lie  for  not  repairing.     F.  N.  B.  127,  n.  a. 

Clearly  Morrell  could  not  destroy  his  part,  if  thereby  Doe  as  much  or 
more  injured  as  by  want  of  necessary  repairs. 

17 


258  ROCKINGHAM. 


Doe  V.  Morrell. 


injure  the  property  of  another,  (a)  But  the  truth  is,  it  is  not 
his  own  in  an  absolute,  exclusive  sense ;  because  Doe  has  a 
right  to  the  enjoyment  of  it.  (6) 

I  think,  therefore,  an  action  lies  ;  and,  for  the  reasons  hinted 
at,  trespass  is  the  proper  action.  The  injury  is  direct  and 
not  merely  consequential.  1  Selw.  355.  The  acts  done  by 
Morrell  were  the  immediate  cause  of  the  injury  to  the  plaintiff. 
It  would  seem  case  would  not  lie.  Com.  Dig.  Action  on 
the  Case,  b.  6.     Sed  vide  note  ante,  8  Went.  PI.  544. 

The  other  judges  concurring,  — 

Judgment  was  given  for  the  plaintiff.^ 

(a)  Sic  tuo  uteris  ut  ne  loedas  alieno. 

(b)  In  consequence  of  the  situation  of  this  property,  there  are  many 
things  which  other  owners  may  lawfully  do  which  Morrell  may  not, — 
bum  it  down  ;  suffer  it  to  be  out  of  repair;  disturb  Doe  in  the  enjoyment 
of  entry,  stairs,  chimney,  &c.  For  a  mere  disturbance,  the  remedy  would 
be  by  action  of  the  case;  but  for  destroying  the  entry,  stairs,  chimney, 
&c.,  trespass. 

1  I.  It  is  quite  clear  that,  so  long  as  both  tenements  remained  in  good 
condition,  Morrell  had  no  right  to  deprive  Doe's  tenement  of  support,  or 
to  prevent  the  beneficial  use  of  the  entry  and  stairway.  Richards  v. 
Rose,  1853,  9  Exch.  218;  Thompson  v.  Miner,  1870,  30  Iowa,  386;  Morri- 
son V.  King,  1871,  62  111.  30.  See,  as  to  the  analogous  case  of  party- walls, 
Enow.  Del  Vecchio,  1854,  4  Duer,  53;  s.  c.  1856,  6  Duer,  17;  Rogers  v. 
Sinsheimer,  1873,  50  N.  Y.  646;  Brondage  v.  Warner,  1841,  2  Hill,  145; 
Pottery.  White,  1860,  6  Bosw.  644;  Bowling  v.  Hennings,  1863,  20  Md. 
179;  Phillips  v.  Bordman,  1862,  4  Allen,  147;  Tindal,  C.  J.,  in  Bradbee 
V.  Christ's  Hospital,  1842,  4  M.  &  G.  714,  761.  (In  the  report  of  Wigford 
V.  Gill,  34  Eliz.,  Cro.  Eliz.  269,  there  is  nothing  to  show  that  the  adjoin- 
ing owner,  who  pulled  down  that  part  of  the  wall  which  stood  on  his 
land,  ever  consented  to  its  erection,  or  was  under  any  obligation  to  allow 
it  to  remain.) 

To  sustain  the  above  position  as  to  Morrell's  rights  and  duties,  it  is  not 
necessary  to  indorse  the  much  controverted  doctrine  of  Pyer  v.  Carter, 
1857,  1  H.  &  N.  916;  nor  to  accede  to  all  the  views  expressed  by  Bell,  J., 
in  Dunklee  v.  Wilton  R.  R.,  1852,  24  N.  H.  489,  495-507.  See  the  very 
explicit  admission  of  one  of  the  leading  opponents  of  Pyer  v.  Carter,  viz., 
Lord  Westbury,  in  Suffield  v.  Brown,  1864,  4  De  G.  J.  &  S.  185,  198. 

The  cases  of  Webster  v.  Stevens,  1856,  5  Duer,  553,  and  Dillman  v. 
Hoffman,  1875,  38  Wis.  559,  were  decided  on  grounds  not  existing  in  Doe 
V,  Morrell, 


FEBRUARY   TERM,  1809.  259 

Doe  V.  Morrell. 

Hieatt  v.  Morris,  1860,  10  Ohio  St.  523,  countenances  the  doctrine,  that 
one  of  the  owners  of  a  party-wall,  which  was  built  by  agreement,  may 
take  it  down,  in  order  to  erect,  on  his  lot,  a  building  better  suited  to  the 
increased  value  of  the  land.  But  this  doctrine  is  inapplicable  to  Doe  v. 
Morrell,  and  does  not  seem  in  accord  with  Morrison  v.  King,  Potter  v. 
White,  and  Bowling  v.  Hennings,  ubi  supra. 

It  has  been  held  that,  when  a  party-wall  is  insecure,  one  of  the  owners, 
if  in  no  fault  for  its  condition,  may  take  it  down  and  rebuild  it,  without 
being  liable  to  the  other  owner  for  damage  thus  occasioned.  Partridge  v. 
Gilbert,  1857,  15  N.  Y.  601;  Crawshaw  v.  Sumner,  1874,  56  Mo.  517.  See 
also  Richardson  v.  Frank,  1870,  2  Cincinnati  Superior  Court  Reporter,  60; 
Cvbitt  V.  Porter,  1828,  8  B.  &  C.  257:  Jesskl,  M.  R.,  in  Standard  Bank  of 
Africa  v.  Stokes,  1878,  38  L.  T.  n.  8.  672.  But,  in  the  present  case,  Morrell 
does  not  appear  to  have  entertained  the  purpose  of  rebuilding. 

II.  The  question  of  Morrell's  obligation  to  repair  his  part  for  the 
purpose  of  affording  continued  support  to  Doe's  part  is  not  necessarily 
involved  in  this  action;  which  was  brought  to  recover  for  positive  acts  of 
destruction,  and  not  for  mere  neglect  to  repair.  It  might  be  held  that 
Morrell,  even  if  under  no  duty  to  repair,  was  bound  (apart  from  the 
matter  of  public  danger)  to  let  his  part  stand  so  long  as  it  furnished  a 
support  to  the  other  part. 

The  question  whether  Morrell  was  under  obligation  to  repair  can 
hardly  be  said  to  be  decisively  settled  by  the  cases ;  but  the  weight  of 
recent  authority  is  in  the  negative. 

It  is  said  in  Keil.  23  H.  VII.  98  h,  pi.  4,  that,  if  one  man  have  the  upper 
part  of  a  house,  and  the  other  the  lower,  they  may  each  compel  the  other 
to  repair  his  part  in  preservation  of  the  other.  See  also  the  dicta  of  Lord 
Campbell,  C.  J.,  in  Humphries  v.  Brogden,  1850,  12  Ad.  &  El.  n.  s.  739, 
756,  757  (citing,  with  approval,  Erskine's  Institute  of  the  Law  of  Scotland), 
and  Dillon,  C.  J.,  in  McCormick  v.  Bishop,  1869,  28  Iowa,  233,  241. 

The  case  in  Keilway,  or  the  report  of  it,  was  doubted  by  Holt,  C.  J., 
in  Tenant  v.  Goldwin,  3  Anne,  6  Mod.  311;  s.  c.  2  Ld.  Raym.  1089; 
1  Salk.  21,  360;  where  it  was  said  that  the  writ  in  F.  N.  B.  127,  is 
grounded  upon  the  custom  of  the  place,  and  not  upon  the  common  law. 

According  to  the  head-note  in  Anonymous,  1  Anne,  11  Mod.  7,  the 
doctrine  of  the  case  in  Keilway  was  there  affirmed;  but  the  casein  11 
Mod.  is  so  imperfectly  reported  as  to  be  of  little  value. 

In  Cheeseborough  v.  Green,  1834,  10  Conn.  318,  it  was  decided,  that 
the  owner  of  the  lower  part  of  a  house  cannot  maintain  an  action  on  the 
case,  against  the  owner  of  the  upper  part,  for  suffering  the  roof  to  become 
leaky  and  ruinous,  whereby  goods  in  the  lower  part  are  damaged;  the 
Court  saying  that  the  plaintiff  could  have  an  adequate  remedy  only  in 
chancery. 

In  the  case  of  a  ruinous  party-wall,  it  was  held  by  Chancellor  Kent, 


260  ROCKINGHAM. 


Doe  V.  Morrell. 


that  one  of  the  owners,  who  pulled  it  down  and  rebuilt  it,  could  recover 
contribution  in  equity  from  the  other  owner.  Campbell  v.  Mesier,  1820, 
4  Johns.  Ch.  33i.  And  see  Read,  J.,  in  Vollmer's  Appeal,  1869,  61  Pa. 
St.  118,  128  (a  case  turning  on  a  statute);  Brown,  F.  J.,  in  List  v. 
Hornbronk,  18G7,  2  W.  Va.  340,  346;  Stevenson  v.  Wallace,  1876,27  Gratt. 
77.  In  Runnels  v.  Bullen,  1823,  2  N.  H.  532,  Woodbuuy,  J.,  said,  p.  535: 
"And  where  the  decay  is  suffered  in  a  portion  of  a  party- wall  between 
cellars  or  houses,  no  doubt  an  action  for  the  consequent  damage  can  be 
sustained  by  the  other  owners;"  and  he  subsequently  cited  Doe  v. 
Morrell,  with  seeming  approval. 

In  Sherred  v.  Cisco,  1851,  4  Sandf.  N.  Y.  Superior  Court,  480,  it  was 
held,  that  there  was  no  claim  for  contribution  where  one  of  the  owners  of 
a  party-wall  rebuilds  it  after  the  destruction  of  the  wall  and  both  adjoin- 
ing buildings  by  fire.  And  in  Partridge  v.  Gilbert,  1857,  15  N.  Y.  601, 
615,  Denio,  C.  J.,  said:  "  I  do  not  perceive  any  solid  distinction  between 
a  total  destruction  of  the  wall  and  buildings,  and  a  state  of  things  which 
should  require  the  whole  to  be  rebuilt  from  the  foundation.  In  either 
case,  there  is  great  force  in  saying  that  the  mutual  easements  have  become 
inapplicable,  and  that  each  proprietor  may  build  as  he  pleases  upon  his 
own  land,  without  any  obligation  to  accommodate  the  other."  These 
dicta  of  Judge  Denio  are  indorsed  in  Freeman  on  Cotenancy  and  Parti- 
tion, §  256.  And  see  Glenn  v.  Davis,  1871,  35  Md.  208;  Cochran,  J.,  in 
Dowling  v.  Hennings,  1863,  20  Md.  179,  185;  Scholfield,  J.,  in  Huck  v. 
Flentye,  1875,  80  111.  258,  260;  Mellor,  J.,  in  Colebeck  v.  Girdler's  Co., 
1876,  L.  R.  1  Q.  B.  D.  234.  Compare  §  223  of  Wood  on  Nuisances  with 
§§  229-231  of  the  same  work.  See  also  statement  of  the  French  law  in 
Washburn  on  Easements,  2d  ed.  555. 

Pierce  v.  Dyer,  1872,  109  Mass.  374,  was  an  action  of  tort  by  the  owner 
of  one  part  of  a  house  to  recover  damages  for  the  wilful  neglect  of  the 
other  owner,  in  permitting  his  part  to  become  ruinous  and  fall  into  decay, 
whereby  the  plaintiff's  part  was  damaged.  It  was  decided  that  the  action 
could  not  be  maintained;  the  Court  holding  that  there  was  no  implied 
obligation  to  repair.  Some  New  Hampshire  decisions,  though  not  in 
point,  may  be  noticed  in  this  connection.  The  grantee  of  a  right  to  grind 
at  a  corn-mill  cannot  maintain  case,  against  one  claiming  the  mill  under 
the  grantor,  for  not  keeping  it  in  repair.  Barllett  v.  Peaslee,  1847,  20  N.  II. 
547.  A  license  to  erect  a  dam  and  flow  the  land  of  another  terminates 
■with  the  decay  of  the  dam,  and  gives  no  right,  when  the  dam  has  become 
decayed  and  ruinous,  to  re-erect  or  repair  it,  and  flow  the  land  again. 
Cowles  V.  Kidder,  1852,  24  N.  H.  364  ;  Carleton  v.  Redington,  1850, 
21  N.  H.  291,  307. 

The  owner  of  the  upper  part  of  a  house  cannot  maintain  an  action  at 
law  against  the  owner  of  the  lower  part,  to  recover  contribution  for  repairs 
made  on  the  roof.  Loring  v.  Bacon,  1808,  4  Mass  575;  Wiggin  v.  Wiggin, 
1862,  43  N.  H.  561;  Ollumwa  Lodge  v.  Lewis,  1871,  34  Iowa,  67. 


FEBRUARY   TERM,   1809.  261 

Doe  V.  Morrell. 

III.   As  to  the  form  of  action. 

Morrell's  counsel  argued  that,  even  "if  he  had  no  right  to  do  what  he 
had  done  — open  one  side  of  plaintiff's  house  and  let  in  the  air  and  storm 
—  the  act  was  done  on  defendant's  own  land  and  to  his  own  timber.  .  .  ." 
But  it  would  seem  physically  impossible  for  Morrell  to  have  sawn  asunder 
his  half  from  Doe's  without  placing  part  of  his  (or  his  servant's)  hand  or 
foot  upon  or  over  Doe's  part,  during  the  act  of  sawing.  Morrell's  right  to 
enter  upon  Doe's  side  of  the  stairs  for  purposes  of  passage  did  not  include 
a  right  to  enter  for  purposes  of  wrongful  destruction.  The  wrongful 
placing  of  part  of  his  hand  or  foot  upon  or  over  Doe's  side  would  be  a 
trespass,  according  to  the  views  expressed  by  Lord  Coleridge,  C.  J.,  in 
Ellis  V.  Lofius  Iron  Co.,  1874,  L.  R.  10  C.  P.  10.  12.  "It  is  clear  that,  in 
determining  the  question  of  trespass  or  no  trespass,  the  Court  cannot 
measure  the  amount  of  the  alleged  trespass;  if  the  defendant  place  a  part 
of  his  foot  on  the  plaintiff's  land  unlawfully,  it  is,  in  law,  as  much  a  tres- 
pass as  if  he  had  walked  half  a  mile  on  it."  In  that  case,  it  was  held  a 
trespass,  if  the  mouth  and  feet  of  the  defendant's  horse  protruded  over 
the  plaintiff's  land,  through  an  opening  in  a  wire  fence ;  Lord  Coleridge 
saying,  "  That  may  be  a  very  small  trespass,  but  it  is  a  trespass  in  law." 

The  cases  as  to  the  remedy  of  one  owner  of  a  party-wall  against  the 
other  hardly  seem  in  point.  Cubitt  v.  Porter,  1828,  8  B.  &  C.  257  (see 
also  Wiltshire  v.  Siflford,  1827,  1  M.  &  R.  404),  is  inapplicable,  unless 
Doe  and  Morrell  were  tenants  in  common.  But  partition  had  already 
been  fully  made  between  them;  and  their  interests  would  seem  to  be 
several,  though  each  had  a  right  to  make  beneficial  use  of  the  other's  part 
for  certain  purposes.  Matts  v.  Hawkins,  1813,  5  Taunt.  20,  may  be  dis- 
tinguished, on  the  ground  that  Morrell  did  not  remove  any  portion  of  the 
building  that  stood  on  Doe's  land. 

In  Carletonw.  Gate,  1875,  56  N.  H.  l:W,  136,  Cushing,  C.  J.,  said: 
"  .  .  .  If  the  case  required  it,  I  should  be  inclined  to  hold  that  the  differ- 
ence between  trespass  and  case  has  now  become  matter  of  form,  and  to 
permit  the  form  of  action  to  be  changed  by  amendment." 


262  STRAFFORD. 


Dame  v.  Twombly. 


STRAFFORD,    FEBRUARY   TERM,    1809. 


Timothy  Dame  v.  Peter  Twombly,  Defendant  in  Review. 

A  defendant,  who  filed  a  set-off,  had  a  verdict  for  a  balance  of  $2.36.  He  remit- 
ted $2.26,  and  took  judgment  for  10  cents.  Upon  review,  brought  by  the 
original  plaintiff,  the  defendant  had  a  verdict  for  $4.50. 

Held,  that  the  remittitur  in  the  original  action  did  not  bind  defendant,  so  that  he 
could  not  recover  more  on  the  review  ;  and  that  he  was  entitled  to  execution 
for  §4.40. 

This  was  assumpsit  on  account  annexed  to  writ. 

Defendant  pleaded  non-assumpsit,  and  set-off. 

At  tlie  former  trial,  February  Term,  1808,  jury  gave  defend- 
ant, Twombly,  balance,  12.36.  He  remitted  $2.26,  and  took 
judgment  for  10  cents,  and  costs. 

[The  original  plaintiff.  Dame,  then  brought  this  review.] 

At  this  Term,  jury  gave  defendant  balance,  $4.50. 

Per  Curiam.    Twombly  must  now  have  execution  for  $4.40, 

and  costs  of  review.     He  is  not  bound  by  the  remittitur  at 

February,  1808,  so  that  the  jury  could  not  give  him  more. 

Of  the  sum  they  have  now  given  him,  he  has  received  10 

cents  only ;  that  must  be  deducted.     The  only  effect  of  the 

remittitur  was,  that  the  verdict,  instead  of  being  for  defendant, 

$2.36,  stood  10  cents. 

Execution  awarded  accordingly. 


APRIL   TERM,   1809.  263 


Steele  v.  Warner. 


HILLSBOROUGH,    APRIL   TERM,    1809. 


Moses  Steele  v.  Daniel  Warner  and  John  Warner. 

Bail  cannot  take  the  principal  out  of  the  jail  limits  (where  he  is  in  execution  on 
another  judgment),  for  the  purpose  of  surrendering  him  in  discharge  of  the 
bail. 

A  debtor  in  execution,  in  order  to  obtain  the  liberty  of  the  jail-yard,  gave  a 
"  prison  bond,"  with  surety,  conditioned  that  he  should  remain  a  prisoner 
within  the  jail  limits  until  lawfully  discharged.  Subsequently,  the  debtor  was 
carried  out  of  the  jail  limits  by  his  bail  in  another  suit,  for  the  purpose  of  sur- 
rendering him  in  discharge  of  the  bail  in  that  suit. 

Held,  that  the  surety  in  the  prison  bond  could  maintain  an  action  on  the  case, 
against  the  bail,  for  thus  carrying  the  debtor  out  of  the  jail  limits. 

Such  action  may  be  brought  before  any  suit  on  the  prison  bond,  or  before  pay- 
ment of  the  debt.  The  measure  of  damages  is  the  surety's  liability  to  the 
creditor. 

This  was  an  action  of  the  case,  (a)  The  declaration  stated 
that  one  Joseph  Chattle,  at  Court  of  Common  Pleas,  Rockitig- 
ham,  January  Term,  1807,  recovered  judgment,  against  one 
D.  Swett,  for  $131.02,  debt  and  costs  ;  that  Swett  was  com- 
mitted, on  the  execution,  to  the  jail  in  Amherst,  and  that  the 
plaintiff  and  one  Mellendy  (6)  were  his  sureties  in  bond  for 
the  liberty  of  the  jail-yard,  penal  sum  $262.04  ;  that  the  de- 
fendants, on  Aug.  13,  1807  (well  knowing  the  premises),  took 
and   carried  Swett  beyond  the  limits  of  the  prison-yard  ;  (c) 

(a)  Qucere.     Would  not  trespass  lie  ?     Hammond,  N.  P.  17;  Hob.  180. 

(b)  Should  not  Mellendy  be  joined? 

(c)  Clarendon,  Hist.  Reb.  277.  Secretary  of  State  discharged  (or 
seemed  to  discharge)  a  person  (papist)  in  custody  of  messenger.  The 
papist  was  then  (afterwards)  committed  in  execution  for  debt.  The 
messenger  took  him  in  custody  from  prison,  and  carried  him,  by  virtue  of 
his  first  warrant,  to  the  Secretary. 

The  creditor  sued  the  jailer  for  an  escape.  The  jailer  sued  the  messen- 
ger, who  appealed  for  justice  to  the  House  of  Commons  against  the 
Secretary. 


264  HILLSBOROUGH. 


Steele  v.  Warner. 


SO  that  the  bond  became  forfeited,  and  the  plaintiff  became 
liable  to  pay  the  creditor  the  debt  and  costs  for  which  Swett 
was  imprisoned,  with  ten  per  cent  interest  and  all  char<:^es; 
and  that  he  has  been  compelled  to  pay  large  suras  amounting 
to$ . 

There  was  a  second  count  to  the  same  effect. 

Plea  :  the  general  issue. 

A  case  was  made  for  the  opinion  of  the  Court.  All  the 
facts  stated  in  the  declaration  were  admitted,  and  also  that, 
before  this  action  was  commenced  (which  was  Aug.  17,  1807), 
the  plaintiff  had  incurred  expenses  in  feeing  counsel,  &c.,  $3. 
It  was  also  admitted  that,  before  the  prison  bond  was  executed, 
the  defendant,  Daniel  Warner,  and  one  David  Everett  had 
become  bail  for  Swett  in  Rockingham,  which  was  known  to 
the  plaintiff  [before  the  plaintiff]  became  bail  or  surety  on 
the  prison  bond  ;  that  a  scire  facias  issued  against  them,  and 
was  returnable  at  August  Term,  1807,  in  Rockingham  ;  that 
the  defendants,  finding  Swett  within  the  limits  of  the  jail-yard 
in  Amherst,  and  knowing  his  situation  there,  arrested  him, 
and  carried  him  to  Exeter,  where  the  scire  facias  on  which 
Daniel  Warner  was  one  of  the  bail  was  returnable,  in  order 
to  deliver  him  up  in  discharge  of  the  bail ;  that  Swett  escaped, 
at  Exeter,  from  defendants'  custody,  and  was  not  delivered  up. 

Bell,  for  plaintiff. 
Atherton,  for  defendants. 

The  opinion  of  the  Court,  at  November  Term  last,  was  de- 
livered by  Smith,  C.  J. 

The  question  is  whether  the  plaintiff  is  entitled  to  recover 
any  thing,  and,  if  any  thing,  how  much,  against  the  defendants. 

The  plaintiff  seems  to  liave  suffered  an  injury  by  this  act 
of  the  defendants.  He  has  thereby  become  exposed  to  pay 
Chattle  the  amount  of  his  debt,  costs,  and  charges  against 
Swett.  It  is  a  general  principle  of  law  that,  for  every  injury, 
the  law  gives  redress.  Upon  the  general  principles  of  law, 
therefore,  the  action  seems  to  be  maintainable.  Peake,  N.  P. 
194.     Sometimes  the  injury  is  considered  as  too  remote  to  be 


APRIL   TERM,  1809.  265 

Steele  v.  Warner. 

the  foundation  of  an  action.  Here  it  seems  direct.  In  Tarle- 
ton  et  al  v.  McGawley^  Peake,  N.  P.  205,  it  was  determined  that 
an  action  on  the  case  lies,  by  the  owners  of  a  vessel,  against 
the  defendant,  for  purposely  firing  a  cannon  at  negroes,  and 
thereby  preventing  them  from  tiading  with  the  plaintiff. 

Let  us  inquire  whether  there  is  any  thing  in  this  case  which 
prevents  a  recovery,  or  which  takes  the  case  out  of  the  gen- 
eral rule  ;  and  this  will  lead  us  to  consider  the  objections  made 
by  the  defendant's  counsel. 

I.  The  defendants  contend  that  the. carrying  of  Swett  to 
Exeter  was  no  breach  of  the  prison  bond. 

The  condition  was  "  that  he  shall  remain  a  true  prisoner  in 
the  custody  of  the  jailer,  within  the  limits  of  the  prison,  until 
he  shall  be  lawfully  discharged."     N.  H.  Laws,  ed.  1805,  127. 

If  he  is  found  out  of  the  limits,  it  is  an  escape,  unless 
brought  out  by  habeas  corpus  or  other  lawful  authority.  If  he 
had  gone  to  Exeter  to  surrender  himself  in  discharge  of  his 
bail,  it  would  have  been  an  escape.  He  could  only  have  been 
lawfully  discharged  by  the  creditor,  or  by  order  of  law.  N. 
H.  Laws,  ed.  1805,  81.  It  is  not  necessary  to  determine,  in 
this  case,  whether  a  forcible  taking  and  carrying  without  the 
limits,  by  the  enemies  of  the  State,  would  save  the  forfeiture, 
as  it  would  excuse  the  sheriff  in  case  of  commitment  to  close 
prison. 

As  it  respects  Chattle,  the  plaintiff  stipulated  against  the 
voluntary  or  negligent  acts  of  Swett,  against  any  acts  of  his 
which  prevent  his  remaining  a  true  prisoner,  and  against  all 
acts  of  other  persons,  except  Chattle  himself.  It  would  have 
been  no  justification  to  the  sheriff  that  the  debtor  was  forcibly 
taken,  except  by  public  enemies,  from  his  custody.  The  bond 
is  substituted  in  the  place  of  the  sheriff's  responsibility,  and  is 
equally  broad  and  equally  beneficial  for  the  creditor.  If  such 
a  taking  would  save  forfeitures  of  prison  bonds,  there  would 
be  few  forfeitures  and  few  prisoners  in  the  jail-yard.  Credit- 
ors would  have  miserable  security  for  their  debts.  There  is 
not  so  much  as  a  color  of  pretence  for  this  objection. 

II.  It  is  contended  that  Swett  has  no  remedy  against  the 
defendants  for   this  act ;  and,  if  he  has  none,  his  surety  has 


266  HILLSBOROUGH. 


Steele  v.  Warner. 


none ;  and  that  the  surety  has  no  remedy  except  against  his 
principal. 

I  am  inclined  to  think  that  both  the  major  and  minor  prop- 
ositions in  this  syllogism  are  unfounded.     Why  has  Swett  no 
remedy  ;  supposing  the  carrying  away  to  be  against  his  will  ? 
It  must  be  because  Daniel  Warner  was  his  bail,  and  the  bail 
may  take  the  principal  wherever  he  can  find  him.     The  gen- 
eral doctrine  is  that  the  bail  may  take  the  principal  at  any 
time,  and  surrender  him  in  discharge  of  his  liability.    Indeed, 
the  principal  is  supposed  to  be  in  the  friendly  custody  of  the 
bail.     But  this,  like  all  other  general  rules,  has  its  exceptions. 
Suppose  the  principal  sick ;  suppose  the  government  has  him 
in  custody,  to  be  sent  out  of  the  country  under  the  alien  act 
or  any  other  such  act ;  suppose  he  is  in  custody  of  the  law  on 
a  criminal  charge  or  under  sentence  ;  suppose  him  in  execu- 
tion at  the  suit  of  a  private  person  ;  in  custody  of  an  officer 
on  arrest ;  in  custody  of  other  bail,  who  were  going  to  surren- 
der him.     6  T.  R.  50,  246;  7  T.  R.  617;  7  G.  Bacon,  401. 
Will  it  be  contended  that  bail  could  justify  breaking  open  the 
prison  and  rescuing  principal  from  the  custody  of  an  officer  ? 
1  G.  Bacon,  345 ;  7  T.  R.  226.     In  most,  if  not  all,  of  these 
cases  the  bail  has  remedy.     His  discharge  (an  exon^retur')  may 
be  entered  on  the  record  without  producing  the  body  in  court. 
An  instance  of  this  kind  occurred  in  this  county.  May  Term, 
1795,  at  Hopkinton  ;  the  sheriff  agreeing  that  the  debtor  was 
in  his  custody  in  the  jail  at  Amherst.     The  reason  why  an 
ezoneretur  is  entered  in  the  absence  of  the  principal,  or  why 
a  habeas  corpus  is  necessary,  is  because  the  bail  cannot  lawfully 
take  the  principal.     In   this  case,  though  the  sheriff  is   not 
liable  to  any  action  for  the  escape  of  Swett  because  [he]  has 
the  liberty  of  the  yard  (Laws,  127),  yet  Swett  is  considered,  all 
the  time,  as  a  prisoner  in  the  custody,  guard,  and  safe-keeping 
of  the  jailer,  as  much  so  as  if  his  body  were  in  close  prison. 
The  defendants  had  no  more  right  to  take  Swett  from  the 
limits  than  from  close  jail.     It  is  conceived    that   a    habeas 
corpus  is  equally  necessary  to   remove   a  prisoner  from   the 
rules  or  jail-yard  as  from  close  prison.     Semble,  3  St.  Tr.  108 ; 
1  Law  C.  P.  42,  43.     The  bail  has  a  right  to  take  and  surren- 


APRIL   TERM,  1809.  267 

Steele  v.  Warner. 

der  the  principal  when  they  lawfully  may  take  him  ;  but  they 
cannot  abuse  his  person ;  they  cannot  carry  him  out  of  tlie 
government ;  they  cannot  take  him  from  the  custody  of  the 
law,  or  subject  another,  who  has  the  lawful  custody  of  him,  to 
damage.  Steele  has  as  much  right,  to  say  the  least,  to  have 
Swett's  body  remain  at  Amherst,  as  the  defendants  have  to 
have  it  at  Exeter.  The  bail  cannot,  in  vindication  of  their 
rights,  compel  Swett  to  do  an  unlawful  act, — to  escape  from 
prison.  Cro.  Eliz.  293.  Suppose  him  in  execution  at  the  suit 
of  a  creditor  for  $10,000.  If  bail  for  $100  may  take  him  from 
the  limits,  they  may  expose  S.  ultimately  to  a  great  loss,  the 
payment  of  ten  per  cent  on  the  $10,000. 

It  is  not,  then,  true  that  Swett  has  no  remedy,  in  any  case, 
against  the  bail,  for  taking  and  surrendering  him  in  discharge 
of  themselves. 

Let  us  examine  the  other  proposition,  —  that  Steele,  the 
surety,  has  no  remedy  which  the  principal  has  not.  The 
surety  in  a  prison  bond  has  an  interest  in  the  safe-keeping  of 
the  principal.  Suppose  the  prison-keeper  and  the  prisoner 
forge  a  discharge  from  the  creditor,  on  which  the  prisoner  goes 
at  large.  Would  not  the  surety  have  remedy  against  the 
prison-keeper,  and  yet  the  principal  would  not  ?  It  is  said 
surety  has  no  remedy  except  against  the  principal.  It  is  true 
he  has  a  remedy  on  contiact  against  his  principal,  when  com- 
pelled to  pay  the  debt  to  the  creditor.  Perhaps  he  might 
even  maintain  an  action  for  a  tort  merely  for  the  voluntary 
act  of  leaving  the  limits,  whereby  he  is  exposed  to  eventual 
loss.  With  respect  to  a  stranger  who  should  subject  the  surety 
to  the  payment,  or  expose  him  to  the  same  eventual  loss,  he 
can  have  no  action  on  contract ;  but  why  not  an  action  for  the 
damage  ?  A  man  may  have  an  action  or  remedy  against  one 
man  for  an  injury  done  him,  and  against  another  man  for 
causing  that  injury  to  be  done.  1  G.  Bacon,  50.  Steele  may 
recover,  in  contract  or  tort,  damages  against  Swett,  for  the 
escape,  and  in  tort,  against  the  defendants,  for  causing  the 
escape.  When  the  prisoner  is  in  close  prison,  as  the  sheriff  is 
answerable  to  the  creditor  for  an  escape,  he  has  his  remedy 
against  the  prisoner,  in  case  he  rescue  himself ;  i.  e.,  in  case  he 


268  HILLSBOROUGH. 


Steele  v.  Warner. 


escape.  His  action  will  be  founded  on  contract.  So,  where 
the  prisoner  has  the  liberty  of  the  yard  on  bonds,  if  he  escape, 
the  surety  has  his  remedy  on  the  implied  contract.  Cro.  Eliz. 
53,  137,  264,  293.  Stat.  124  ;  2  Swift,  114.  If  the  debtor  be 
in  close  prison,  and  any  person  rescue  him,  or  take  him  from 
thence,  without  authority  of  law,  the  sheriff  has  his  action, 
against  such  person,  for  the  wrong  done  him,  exposing  him  to 
the  creditor's  action.  We  have  seen  that  the  bond  is  in  lieu 
of  the  sheriffs  responsibility.  The  sureties  stand  in  the  place 
of  the  sheriff;  they  become  answerable  to  the  creditors,  and 
the  sheriff  ceases  to  be  so.  Why,  then,  should  not  the  sureties 
have  the  same  remedy  against  a  rescuer,  a  person  who  wrong- 
fully exposes  them  to  the  action  of  the  creditor,  as  the  sheriff 
would  have  in  the  like  case  ?  They  have  the  same  interest 
in  the  safe-keeping  as  the  sheriff  had,  and  the  damage  to 
them  is  the  same.  Bail  and  sureties  have  similar  remedies. 
Suppose,  while  defendants  were  carrying  Swett  to  Exeter  to 
surrender  him,  a  stranger  had  rescued  him  from  their  custody. 
Can  it  be  doubted  that  they  would  have  a  remedy  for  this 
wrong?  What  would  they  think  of  the  doctrine  that  their 
only  remedy  was  against  Swett,  and,  if  he  were  confederate 
with  the  rescuers,  and  consequently  could  not  maintain  anj-- 
action  against  them,  therefore  the  defendants  could  not?  It 
has  been  determined  that  the  creditor,  on  rescue  of  his  debtor 
on  mesne  process,  may  sue  the  rescuers  ;  for  he  hath  loss 
thereby.  Cro.  Jac.  419,  485.  He  cannot  have  an  action 
against  the  sheriff,  and  it  is  reasonable  he  should  have  it 
ao-ainst  those  who  did  the  injury.  Here  Steele  stands  in  the 
place  of  the  creditor.  This  injury  is  done  to  him,  for  he  has 
thereby  become  answerable  to  the  creditor. 

HI.  In  case  defendants  are  liable  to  Steele  in  any  event,  it 
is  said  they  are  not  liable  in  this  action,  because,  at  the  time 
it  was  commenced,  the  debt  was  not  paid  to  Chattle,  and  it 
may  be  that  Swett  himself  will  pay,  or  that  Chattle  may  never 
sue,  or,  if  he  does,  may  not  recover. 

In  the  case  of  Gould  et  al.  v.  Green,  in  this  Court,  two  years 
ago,  8  Manuscript  Reports,  175  (7  G.  Bacon,  205),  it  was 
decided  that  bail  who  had  been  sued,  but  who  had  not  paid 


APRIL   TERM,   1809.  269 

Steele  v.  Warner. 

the  debt,  could  only  recover  nominal  damages  ;  a  mere  liabil- 
ity of  bail  or  surety  to  be  sued,  for  the  default  of  the  princi- 
pal, gives  no  cause  of  action  ;  actual  suit  gives  remedy  only 
for  the  damages  actually  sustained.  But  there  the  action  was 
for  breach  of  contract  of  indemnity.  The  damages  must  be 
the  damages  sustained,  tliat  is  the  damnification  ;  but  this  is 
not  an  action,  by  the  surety,  against  the  principal,  on  contract, 
but  against  a  stranger  for  a  tort.  It  has  been  repeatedly  de- 
cided that  the  sheriff  may  sue  the  prisoner  escaping,  before 
the  sheriff  has  paid  the  money.  This  was  decided  in  The 
Sheriffs  of  Norwich  v.  Bradshaw,  Cro.  Eliz.  53.  It  was  an 
action  upon  the  case  for  a  tort  {ut  semble')  (Cro.  Eliz.  123, 
124.  The  action  was  assumpsit).  Per  Curiam.  "An 
action  lieth,  for  the  escape,  by  the  sheriffs,  before  the  party 
sue  them  ;  for  the  party  arrested  did  wrong  to  them  by  the 
escape  and  rescous,  and  they  are  always  chargeable  to  the 
creditor  ;  and,  if  they  stay  till  they  are  sued,  perhaps 
the  party  that  escaped  may  die  in  the  interim,  or  will  fly 
the  country,  that  they  cannot  hear  of  him.  The  party  shall 
not  take  advantage  of  his  own  tort."  The  same  point  was 
afterwards  decided  in  Salterton  ^  Affely  v.  Payne^  Cro.  Eliz. 
237,  349  ;  W.  v.  T.,  Cro.  Car.  187  ;  Com.  Dig.  Escape,  E.  185. 

The  damage  to  the  plaintiff  is  the  liability  incurred  by 
plaintiff  in  consequence  of  defendants'  unlawful  act.  The 
plaintiff  is  entitled,  for  the  reasons  mentioned,  to  the  same 
remedy  the  sheriff  would  have  when  the  rescue  is  from  his 
custody ;  and  surely  the  same  remedy  lies  against  a  stranger 
as  against  the  prisoner.  Indeed,  in  the  latter  case,  the  reasons 
for  the  action,  and  why  it  should  lie  immediately  on  the  wrong 
done,  are  much  stronger. 

The  damage  to  Steele  is  what  any  reasonable  person,  calcu- 
lating on  all  the  circumstances,  would  take  to  stand  in  his 
shoes. 

The  cause  was  continued,  to  ascertain  the  damage  by  jury. 

The  Chief  Justice  said  that,  though  he  had  no  doubts, 
yet,  as  Judge  Livermore  had,  at  last  Term,  and  as  lie  was  not 
now  present,  he  was  willing  to  hear  what  could  be  urged  for 
defendants  at  next  Term. 


270  CHESHIRE. 


Proprietors  of  Cornish  v.  Kenrick. 


At  the  next  Term  (the  present)  the  parties  agreed  that 
the  debt  due  Chattle  should  be  the  damages,  and  sul)mitted  it 
to  the  Court  to  say  whether  interest  should  be  cast  at  six  or 
ten  per  cent. 

Per  Cueiam.  Ten  per  cent  might  be  given  ;  but,  under  the 
circumstances  of  this  case,  let  the  interest  be  six  per  cent. 


CHESHIRE,  MAY  TERM,  1809. 


Proprietors  of  Cornish  v.  Ariel  Kenrick. 

Proprietors  of  common  lands  can  convey  by  vote. 

Semlle,  no  statute  required  the  particular  matters  to  be  done  at  proprietors'  meet- 
ings to  be  inserted  in  the  notification. 

This  was  a  real  action,  to  recover  land  in  Cornish. 

Plea  :  the  general  issue. 

At  May  Term,  1808,  a  verdict  was  given  for  the  plaintiffs, 
subject  to  the  opinion  of  the  Court  on  a  case  stated. 

The  defendant  relied  on  certain  votes  of  the  proprietary, 
whereby  he  alleged  that  the  plaintiffs,  who  were  once  the 
owners  of  the  demanded  premises,  had  parted  with  their  title. 
The  plaintiffs  raised  several  objections  as  to  the  validity  and 
effect  of  these  votes.  Only  so  much  of  the  opinion  is  here  re- 
ported as  bears  on  two  of  these  objections.^ 

Smith,  C.  J.  I.  To  show  that  plaintiffs  have  not  departed 
with  their  title,  it  is  said,  by  their  counsel,  that  they  can  only 
convey  by  deed ;  they  are  not  a  corporation  for  any  purpose, 
but  mere  tenants  in  common  of  the  undivided  land  in  Cor- 
nish; and,  inasmuch  as  no  deed  is  shown,  the  title  still 
remains  in  them,  and  they  are  entitled  now  to  recover. 

^  Statement  of  case  by  compiler. 


MAY   TERM,   1809.  271 

Proprietors  of  Cornish  v.  Kenrick. 

It  is  certain  there  is  nothing  in  the  grant  or  charter  of  Cor- 
nish, which,  in  express  terms,  makes  the  grantees  a  corpora- 
tion.    Indeed,  in  the  same  instrument,  the  persons  who  shall 
inhabit  within  the  limits  of  Cornish  are  constituted  a  body 
politic.     This  creature  called  a  propriety  is  peculiar  to  New 
England  ;    we  find  nothing  like  it  in  Great  Britain.     It  is  co- 
eval with  the  grant  of  this  country,  and  our  towns  are  framed 
after  the  model  of  the  ancient  State  or  Commonwealth.     A 
large  tract  of  country  was  granted  to  a  number  of  persons. 
To  them  belonged  the  right  of  soil.     To  the  same  men,  by  the 
same   instrument,    were  granted  the  powers  of  government. 
This  large  tract  of  country  was   the  Province  or  Common- 
wealth.    When  a  town  was  granted  to  certain  individuals  by 
name,  these  persons  were  proprietors  of  the  soil,  and  had  also 
the  powers  and  privileges  of  a  town.     The  latter  powers  could 
only  be  exercised  by  a  corporate  body,  and,  therefore,  without 
any  aot  of  incorporation,  the  grantees  were  deemed  and  taken 
to  be  a  corporate  bod}"^  in  the  same  manner  as  the  whole  State, 
i.  e.  the  owners  of  the  soil,  were  a  body  politic,  and  exercised 
powers  of  government  upon  a  scale  somewhat  larger,  indeed, 
than    those    exercised    by    towns.      The    land    comprehended 
within  the  peninsula  now  called  Boston  was  granted,  by  the 
General  Court   of   Massachusetts,   to    certain  individuals  by 
name.     These  were  not  incorporated,  but  the  very  grant  of  a 
parcel  of  land  large  enough  for  a  town,  to  a  number  of  per- 
sons, was  considered  as  constituting  them  a  propriety,  —  a  body 
with  town  privileges.     It  was  necessary  they  should  have   a 
name  ;  accordingly  we  find  it  voted,  by  the  Governor  and  assist- 
ants of  that  day,  that  Tramontane,  the  vulgar  name,  be  called 
Boston  ;    and  this  is  the  only  act  incorporating  the  capital  of 
Massachusetts,  and  the  first  town  in   New  England.     When 
lands  were  granted  to  a  number  of  individuals,  they  acted  as 
a  corporation,   both  as  it  respected  the  improving,  dividing, 
and  disposing  of  the  soil,  and  the  government  of  the  inhabi- 
tants.    The  freeholders,  owners  of  the  soil,  were  freemen  and 
members  of  the  corporation.     They  were  voters,  and  the  only 
voters,  in  the  corporate  body.     When  a  person  was  made  free 
of  the  corporation,  or,  in  other  words,  received  as  a  member, 


272  CHESHIRE. 


Proprietors  of  Cornish  v.  Kenrick. 


he  thereby  became  interested  in  the  town  property  and  town 
privileges. 

In  process  of  time,  when  lands  were  granted  on  speculation, 
and  not  merely  for  settlement,  the  propriety  and  town  began 
to  be  viewed  as  distinct  bodies.  All  inhabiting  within  the 
limits  of  the  territory  granted  were  constituted  a  corporation, 
endowed  with  the  franchises  and  privileges  of  towns.  The 
powers  of  government  were  vested  in  this  body.  This  body 
comprehended  some,  but  not  all,  of  the  proprietors  of  the  soil ; 
and  many  who  owned  no  lands  were  members  of  the  town  cor- 
poration. The  proprietors  of  the  soil  ceased  to  possess  any 
powers  of  government,  but  they  still  retained  as  many  of  their 
corporate  powers  as  were  necessary  or  useful,  —  such  as  the 
corporate  power  of  managing,  improving,  dividing,  and  dispos- 
ing of  the  soil.     N.  H.  Laws,  ed.  1805,  191. 

This  was  the  law  when  Cornish  was  granted,  and  had  been 
so  for  more  than  half  a  century.  The  grantees  were  a  body 
politic  (Laws,  191),  for  the  purpose  of  managing,  improving, 
bringing  forward  the  settlement  by  clearing  out  roads,  erect- 
ing bridges,  mills,  &c.,  dividing  their  lands,  or  disposing  of 
them  to  others.  They  acted  not  as  individuals,  as  tenants  in 
common,  but  as  a  corporate  body,  by  majority  of  votes.  They 
held  meetings  ;  voted  to  raise  money  ;  assessed  taxes  on  their 
lands,  even  after  divided ;  made  roads ;  built  mills ;  com- 
menced and  defended  lawsuits  ;  divided  their  lands  into  lots  ; 
appropriated  certain  parcels  to  public  uses  ;  made  extra  grants 
to  individual  proprietors  and  to  strangers,  whenever,  in  the 
opinion  of  a  majority  in  open  meeting,  the  good  of  the  propri- 
ety would  be  promoted  thereby.  By  the  same  instrument 
which  granted  the  soil,  the  persons  who  should  afterwards  in- 
habit within  the  limits  described  were  invested  with  the 
powers  of  towns ;  but  they  had  no  control  over  the  soil,  as 
towns  had  at  the  first  settlement  of  the  country,  and  for  some 
time  afterwards. 

This  I  conceive  to  be  the  origin  of  proprieties.  They  are  a 
corporation  of  a  peculiar  kind,  and  with  very  limited  powers. 
The  share  or  interest  of  a  member  was  grantable  by  deed ;  it 
was  devisable  and  descendible.     But  I  believe  it  never  was 


MAY   TERM,   1809.  273 

Proprietors  of  Cornish  v.  Kenrick. 

holden  that  it  could  be  taken  for  debt,  or  levied  on.  When 
the  propriety  had  divided,  or  granted  away,  all  the  soil,  it 
would  seem  that  the  corporate  power  ought  to  be  considered 
as  ipso  facto  dissolved.  But  this  does  not  seem  to  have  been 
the  case.  At  least,  statutes  provided  for  the  exercise  of  cer- 
tain corporate  powers  after  partition.  Temporary  Acts,  15, 
37,  Prov.  Law.  It  is  not  easy,  perhaps,  to  determine  when 
the  corporate  powers  of  a  propriety  cease.  They  do  not  cease 
when  the  town  powers  commence,  or  come  into  exercise. 
They  cease  when  the  object  in  view,  by  creating  them,  ceases  ; 
i.  e.,  when  the  tract  of  land  is  so  managed,  improved,  &c.,  as 
no  longer  to  require  their  continuance.  The  act  of  July  3, 
1781,  191,  provides  that  proprietors  of  townships  and  tracts  of 
land,  after  division  and  severance  among  the  proprietors,  may 
levy  taxes  on  the  lands  so  severed  and  allotted  to  particular 
individuals,  for  the  purpose  of  fulfilling  the  terms  and  condi- 
tions of  the  grant  or  charter. 

If  it  be  inquired  where  the  doctrine  I  have  stated  is  to  be 
found,  I  answer,  in  the  records  of  New  England,  in  the  deci- 
sions of  courts.  These  powers  are  implied,  and  these  doctrines 
recognized,  in  various  statutes  ;  but  our  statutes  do  not  create 
proprietors  of  a  township  or  large  tract  of  land  a  propriety, 
or  corporate  body  with  corporate  powers  ;  they  do  not  define 
their  powers.  They  existed  before  we  had  any  statute  on  the 
subject,  at  least  any  that  can  now  be  found.  Our  statutes  are 
framed  on  the  idea  that  proprieties  existed  with  certain  cor- 
porate powers.  The  act  of  May  13,  1718,  Prov.  Law,  71, 
regulates  proprietary  meetings.  This  does  not  authorize  pro- 
prietors to  meet  and  do  certain  acts  at  their  meetings ;  it  is 
implied  that  they  may  meet,  and,  as  a  corporate  body,  do  cer- 
tain acts.  It  does  not  give  corporate  powers;  it  implies  that 
they  already  have  them.  An  act  of  the  same  date,  p.  112, 
declares  that  proprietors  may  sue  and  defend,  either  by  them- 
selves or  their  agents  or  attorneys,  and  authorizes  them  to 
choose  agents  at  any  meeting  orderly  warned.  It  also  pro- 
vides how  process  shall  be  served  on  them.  In  the  year  fol- 
lowing (May  2,  1719,  136,  137),  in  an  act  for  regulating 
townships,  choice  of  town  officers,  and  setting  forth  their  povv- 

18 


274  CHESHIRE. 


Proprietors  of  Cornish  v.  Kenrick. 


ers,  the  third  section  enacts,  "  that  the  proprietors  of  all  undi- 
Yided  or  common  lands  are  empowered  to  manage,  improve, 
divide,  or  dispose  of  the  same,  as  hath  been,  or  shall  be,  con- 
cluded and  agreed  on  by  the  major  part  of  the  proprietors."  (a) 
The  preamble  of  the  Temporary  Act  of  1  Geo.  III.  T.  L.  25, 
says  the  laws  in  force  imply  that  there  is  law  for  raising  and 
levying  money  upon  the  rights  of  proprietors  of  lands  held  in 
common  in  a  summary  way.  This  act,  and  the  subsequent 
ones,  before  the  Revolution  (Temporary  Laws,  15,  37  ;  State 
Laws,  ed.  1805.,  190,  &c.),  make  similar  provision  on  the  sub- 
ject of  proprieties,  as  the  laws  now  in  force.  Our  statutes 
only  modify  the  power  of  proprieties ;  they  do  not  confer  it. 
(See  Hutch.  Coll.  Papers,  167  ;  Mass.  Hist.  Coll.  VL  236, 
237.) 

But  enough  has  been  said  to  show  that  the  present  objection 
is  not  well  founded.  It  always  has  been  the  usage,  in  this 
State,  for  proprietors  to  convey  by  vote,  and  it  is  too  late  to 
object  to  the  legality  of  such  conveyances.  Though  proprie- 
ties are  a  corporation  for  certain  purposes,  they  are  a  corpo- 
ration sui  generis.  Like  the  ancient  towns,  they  may  convey 
lands  by  vote.  The  lands  granted  in  early  times  were  not 
granted  under  the  seal  of  the  company,  but  by  vote.  It  was 
held  that  the  patent  did  not  require  that  there  should  be  a 
corporation  seal,  but  that  the  manner  of  disposing  of  their 
lands  was  left  at  liberty  of  the  General  Court.  1  Hutch. 
323,  n.  This  conveyance  of  lands  by  vote  is  a  part  of  the 
New  England  common  law.  Our  statute  of  1718  expressly 
declares,  in  affirmance  of  this  common  law,  that  proprietors  of 
common  and  undivided  lands  may  dispose  of  tliem  as  shall  be 
concluded  and  agreed  on  by  the  major  part  of  the  proprietors. 
The  former,  as  well  as  the  present,  law,  provides  that  proprie- 
tors, at  any  legal  meeting,  may  confirm  conveyances  by  them 
intended  to  have  been  made.  Temporary  Laws,  Prov.  16  ; 
State  Laws,  ed.  1805,  190. 

I  have  gone  thus  far  into  the  subject,  not  from  any  doubt  I 

(a)  The  same  act  recognizes  certain  customs  and  usages  of  towns ; 
powers  of  towns  to  grant  lands.  It  is  made  the  duty  of  the  town  clerk  to 
record  such  grants,  &c. 


MAY   TERM,  1809.  275 

proprietors  of  Cornish  v.  Kenrick. 

entertain  of  the  legality  of  proprietors  conveying  their  land 
by  vote,  but  to  show  that  much  of  our  law  rests  on  the  early 
customs  and  usages  of  New  England,  (a) 

II.  [The  next  point  relates  to  the  admissibility  of  a  record 
not  attested  by  any  person.  It  was  held,  that  records  of  pro- 
prietors' doings,  though  not  attested  by  any  clerk,  may  be 
received  in  evidence  against  the  proprietors,  if  there  be 
sufficient  evidence  of  their  genuineness:  the  attestation  of  a 
clerk  is  not  indispensably  necessary  to  establish  a  valid  record. 
S.  P.  Adams  V.  Stanymi,  24  N.  H.  405,  416.] 

III.  rit  was  next  held,  that,  at  a  great  distance  of  time,  say 
thirty  years,  it  would  be  presumed,  as  against  the  proprietors 
(nothing  appearing  to  the  contrary),  that  proprietors'  meetings 
were  legally  warned  and  held.  See  Cohleigh  v.  Young,  15 
N.  H.  49^].f 

IV.  A  fourth  objection  is  that  the  proceedings,  if  they  can 
operate  as  a  conveyance  or  estoppel,  if  properly  authenticated, 
and  if  the  meeting  were  duly  warned,  still  are  not  binding, 
because  the  sulgect-matter  of  the  votes  was  not  inserted  in  the 
notification. 

If  it  be  not  necessar"  to  produce  the  warrants  or  notifica- 
tions, or  copies  of  the  or.  ;inals,  and  to  prove  the  notice  actu- 
ally given,  how  can  w*.  say  whether  this  objection  is  well 
founded  in  point  of  fact,  r  not?  We  cannot  tell  whether  the 
intent  and  design  of  the  meeting  was  inserted,  or  not.  And, 
though  it  is  certainly  reasonable  that  whatever  is  to  be  dis- 
cusseil  at  a  meeting  should  be  inserted  in  the  notification  for 
calling  the  meeting,  and  especially  that  all  proposed  grants  of 
land  should  be  specified,  yet  it  is  equally  reasonable  that  pro- 
prietors should,  in  a  reasonable  time  after  grants  made,  where 
no  such  notice  was  actually  given,  except,  or  make  their  objec- 

(o)  If  conveyance  is  not  valid  to  pass  the  land,  it  may  still  estop  the 
proprietors  from  recovering  in  ejectment.  See  New  Boston  v.  JJalch, 
12  Manuscript  Reports,  3"27. 

How  is  a  proprietary  constituted? 

There  must  be  a  grant  of  a  township  or  large  tract  of  land.  It  seems 
the  grant  need  not  be  by  the  supreme  power;  for  grantees  of  townships  by 
Masouian  proprietors  are  proprietaries. 

It  must  be  to  two  in  unequal  proportions,  or  to  more  than  two. 


276  CHESHIRE. 


Proprietors  of  Cornish  v.  Kenrick. 


tions,  to  the  legality  of  the  proceeding.  If  thej''  make  no 
objection,  but  peaceably  acquiesce  under  it,  it  is  reasonable  to 
suppose  that  they  waive  the  irregularity  in  the  notification. 

The  act  of  1718,  "  for  the  better  regulation  of  town  and 
proprietary  meetings,"  p.  72,  provides  "  tliat  no  matter  or 
thing  shall  be  voted  or  determined  at  a  town  meeting,  called 
at  the  request  of  a  certain  number  of  freeliolders,  but  what  is 
inserted  in  the  warrant."  And  the  act  of  1791  enacts  "that 
nothing  done  at  a  town  meeting  shall  be  valid,  unless  the  sub- 
ject-matter thereof  shall  have  been  inserted  in  the  warrant  for 
calling  the  meeting." 

I  have  met  with  no  similar  provision  respecting  proprietary 
meetings.  It  is  provided  in  the  act  of  1760,  re-enacted  in  1781, 
"  that,  where  no  particular  method  has  been  agreed  upon  by 
proprietors  for  calling  their  meetings,  a  justice  of  the  peace, 
upon  the  application  of  the  owners  of  a  certain  number  of 
shares,  expressing,  in  writing,  their  desire  that  he  would  notify 
and  call  a  meeting,  and  the  end  and  design  of  it,  shall  issue 
a  warrant  or  notification  for  a  meeting, — among  other  things 
setting  forth  the  business  to  be  transacted."  It  is  not  said 
that  this  shall  be  done  at  every  meeting  ;  nor  that  nothing 
shall  be  valid  when  this  is  not  inserted,  as  in  the  case  of  towns. 
It  is  certainly  remarkable  that  the  statute  of  1718,  which  was 
made  for  the  regulation  of  town  and  proprietary  meetings, 
should  provide  for  inserting  the  design  of  the  meeting  in  the 
notification  for  town  meetings,  and  should  omit  proprietary 
meetings.  Besides,  the  end  and  design  of  the  meeting,  spoken 
of  in  the  statute  of  1781,  is  a  phrase  of  a  very  general  nature. 
It  is  believed  that  proprietors  have  not  generally  conceived 
that  it  was  necessary  to  insert  the  particular  matters  to  be 
transacted  at  the  meeting  in  the  notification  ;  at  least  that 
this  was  the  case  in  former  times.  I  know  one  proprietary, 
who  have  granted  many  lands,  where  the  custom  was  to 
propose  a  grant  in  one  meeting  and  to  make  it  at  the  next, 
or  at  an  adjournment  of  the  same  meeting.  I  allude  to 
the  Proprietors  of  Old  Dunstable.  See  Proprietors  of  Old 
Dunstable  v.  Blood,  6  Manuscript  Reports,  143-161.  Pro- 
prietors of  Peterborough  —  Qucere  as  to  Masonian  Proprietors. 


MAY   TERM,  1809. 


Proprietors  of  Cornish  v.  Kenrick. 


The  first  notification  (for  the  meeting  in  1763)  expresses 
as  the  design  of  the  meeting,  inter  alia,  to  choose  a  committee 
to  lay  out  any  tracts  of  land  to  any  particular  persons,  and  to 
do  any  thing  else  which  the  proprietors  may  think  will  be  for 
the  benefit  of  the  town.  This  is  a  general  account  of  the 
business  to  be  transacted  at  the  meeting.  Prov.  Law,  15. 
At  this  meeting,  a  method  was  agreed  on  for  calling  meetings 
in  future,  in  which  it  is  required  that  the  reason,  or  reasons, 
for  calling  the  meeting,  be  fully  expressed  in  the  notification 
to  be  posted  up.  I  think  we  are  bound  to  presume  that  this 
regulation  was  complied  with.  But,  inasmuch  as  the  statute 
does  not  make  what  is  now  insisted  upon  indispensably  neces- 
sary to  the  validity  of  the  proceedings,  I  am  not  prepared  to 
say  that  the  grant  is  void  without  it ;  or  that  the  plaintiffs 
can,  at  this  distance  of  time,  take  advantage  of  it. 

[Three  other  objections  taken  by  the  plaintiffs  were  then 
considered  and  overruled.] 

Verdict  set  aside  ;  and  verdict  entered,  according  to  the  agree- 
ment of  the  parties,  for  defendant.^ 

Judge  LiVERMORE,  who  was  absent,  concurs  ;  and  Judge 
WiNGATE,  who  was  present,  says  he  entirely  agrees. 

1  The  doctrine  that  proprietors  of  common  lands  can  convey  by  vote 
has  repeatedly  been  recognized.  Richardson,  C.  J.,  in  Cobuni  v.  Ellen- 
wood,  1827,  4  N.  n.  99,  101,  102;  Atkinson  v.  Bemis,  1840,  11  N.  H.  44; 
Little  V.  Doioning,  1858,  37  N.  H.  355. 

See  also,  as  to  proprietaries,  Parker,  C.  J.,  in  Wells  v.  Burbank,  1845, 
17  N.  H.  393,  403,  404;  Eastman,  J.,  in  Forsaith  v.  Clark,  1850,  21  N.  H. 
409,  416,  417;  Proprietors  of  Sunapee  v.  Eastman,  1855,  32  N.  H.  470; 
Eastman,  J.,  in  Corbett  y.  Norcross,  1857,  35  N.  H.  99,  114;  Bell,  J., 
in  Willey  v.  Portsmouth,  1857,  35  N  11.  303,  310;  South  Hampton  v.  Fowler, 
1872,  52  N.  H.  225  (s.  c.  54  N.  H.  197). 


278  CHESHIRE. 


Holden  v.  Reed. 


N.  Holden,    Adniinistiator  of  William  Henry,  v. 
Elijah  Reed. 

B.,  O.,  P.,  and  R.  unlawfully  caused  H.  to  be  arrested,  ami  compelled  liini  to  pay 
money  to  obtain  his  release.  IL  brought  assumpsit,  for  money  had  and  re- 
ceived, against  B.  only,  and  had  judgment  to  recover  back  the  payment. 
AVhile  a  suit  was  pending  against  the  bail  of  B.,  to  obtain  satisfaction  of  this 
judgment,  H.,  at  the  request  of  B.,  brought  an  action,  for  money  had  and  re- 
ceived, against  R.,  which  was  to  be  prosecuted  at  B.'s  risk,  and  for  his  sole 
benefit. 

Held,  that  the  latter  action  was  not  maintainable. 

Assumpsit  for  money  had  and  received  to  the  use  of  the 
intestate,  June  3, 1805. 

Plea  :  the  general  issue. 

The  parties  agreed  on  a  statement  of  facts,  in  substance  as 
follows :  — 

June  3,  1805,  Bigsby,  Oaks,  and  Patterson  arrested  the 
intestate  at  Charlestown,  on  an  advertisement  signed  by  de- 
fendant, alleging  that  defendant  had  arrested  the  intestate  in 
Vermont,  and  that  he  had  escaped  from  his  custody  (defendant 
was  a  constable  in  Vermont).  They  carried  Henry  to  Ver- 
mont, to  Reed,  where  he  was  compelled  to  pay  $11  to  obtain 
his  release  from  imprisonment.  Before  the  present  action 
was  commenced,  the  plaintiff  had  recovered  judgment  against 
Bigsby,  in  an  action  like  the  present,  for  $11,  for  the  same 
cause  of  action.  The  money  is  not  yet  paid  ;  but  a  suit  is 
pending  against  the  bail  of  Bigsby,  to  obtain  satisfaction  of 
that  judgment.  The  present  suit  is  brought  in  tlie  name  of 
Holden,  administrator,  by  Mr.  Briggs  (the  attorney  who  pros- 
ecuted Bigsby),  at  Bigsby 's  request,  at  his  risk,  and  for  his 
sole  benefit.     Jiigsby  lives  in  Vermont. 

The  opinion  of  the  Court  was  now  delivered  by  Smith,  C.  J. 

The  question,  on  these  facts,  for  the  opinion  of  the  Court,  is 
whether  the  action  is  maintainable.  Independent  of  the  judg- 
ment against  Bigsby  for  the  same  cause  of  action,  the  defend- 


MAY   TERM,   1809.  279 

Hulden  v.  Reed. 

ant  is  liable.  The  question  is  whether  that  recovery  is  a  bar. 
In  actions  founded  on  contract,  where  several  persons  are 
bound  to  do  the  same  thing,  to  pay  the  same  debt  or  perform 
the  same  duty,  full  satisfaction  by  one  is  a  complete  discharge 
to  all.  The  creditor  is  entitled  to  but  one  satisfaction  from 
all  the  contractors,  whether  their  engagement  was  joint,  or 
joint  and  several.  A  release  to  one  is  a  release  to  all.  3  Burr. 
1345  ;  2  Show.  441,  449. 

So,  if  several  persons  jointly  commit  a  tort,  —  as  it  is  but  one 
injury,  though  committed  by  several  persons,  —  the  injured  party 
shall  have  but  one  satisfaction  from  them  all.  A  release  to 
one  is  a  discharge  to  all.  It  seems  formerly  to  have  been 
questioned  whether  judgment  and  satisfaction  by  one  joint 
trespasser  was  a  good  plea  in  bar  to  an  action  for  the  same 
trespass,  brought  against  another.  Cro.  Eliz.  30.  But  the 
law  is  now  well  settled  that  it  is  a  bar.  6  G.  Bacon,  612 ; 
Esp.  319  ;  Co.  Litt.  232  a;  5  T.  R.  649  ;  Cro.  Jac.  73,  338. 

But  in  contracts  which  are  joint,  and  not  several,  the 
plaintiff  must  sue  all  ;  /.  e.,  all  joint  contractors  must  be  made 
defendants,  otherwise  the  defendant  may,  by  i)leading  the 
non-joinder,  abate  the  writ.  1  Wms.  Saund.  291  h,  n.  4. 
If  the  contract  be  several  as  well  as  joint,  the  creditor  has  his 
election  to  sue  all  in  a  joint  action,  or  to  have  a  several  action 
ajrainst  each.  But  he  cannot  treat  the  same  contract  as  both 
joint  and  several  at  the  same  time.  He  cannot  sue  all  and 
one  or  two  out  of  three  joint  contractors.  1  Chitt}',  PI.  30. 
If  he  do,  they  may  plead,  in  abatement,  that  the  third  is  not 
named  defendant  with  them.  If  they  do  not  plead  it  in 
abatement,  he  cannot  afterwards  sue  the  third  ;  because,  by 
suing  two,  he  proceeded  upon  the  conti-act  as  a  joint  one,  and 
there  can  be  but  one  action  on  a  joint  contract.  1  Wms. 
Saund.  291  e,  n.  (a).^ 

(«)  Joint  contract ;  several  defendants  liable;  one  omitted.  He  cannot 
afterwards  be  sued;  he  is  discharged.  Cro.  Jac.  73,  74;  Com.  Dig. 
Action,  K.  4;  1  Chitty,  PI.  30. 

1  As  to  the  above  statements,  relative  to  remedies  upon  joint  and 
several  contracts,  see  1  Chitty,  PI.  50;  Freeman  on  Judgments,  ^  235; 
citing  authorities  yj?-o  and  con. 

There  are  marks  on  the  manuscript,  from  which  it  might  possibly  be 


280  CHESHIRE. 


Holden  v.  Reed. 


If  several  persons,  —  for  example,  four,  —  jointly  commit  a 
tort,  or  do  a  joint  injury,  the  plaintiff  has  his  election  to  sue  all, 
or  any  number,  of  the  parties  ;  because  a  tort  is,  in  its  nature, 
the  separate  act  of  each  individual.     He  may  sue  one,  two, 
three,  or  all.    Those  sued  cannot  plead  that  others  are  omitted  ; 
because  each  is  liable  for  the  whole,  and  the  plaintiff  may 
consider  it  as  the  sole  act  of  all,  one,  or  more,  of  the  actors. 
The  law  will  not  favor  one  jointly  concerned  in  a  wrong  done 
as  it  does  one  jointly  contracting.     In  the  latter  case,  the  one 
sued  may  have  the  benefit  of  the  other  joint  contractors  in  the 
defence,  if  he  please.     But,  in  the  former  case,  any  one   or 
more  of  the  wrong-doers  shall  be  compelled  to  answer  for  the 
whole.     The  law  will  not  allow  him  to  say  that  he  did  the  in- 
jury jointly  with  others  ;  and  he  is  not  allowed  to  have  contri- 
bution, as  joint  contractors  may.    Selw.  N.  P.  67  ;  8  T.  R.  186. 
But  the  injured  party  can  have  but  one  action.     He  cannot 
afterwards,  in  another  suit,  charge  the  same  act  or  injury  to 
another.     A  recovery  against  one  is  a  bar  to  an  action  against 
another  for  the  same  cause.     The  remedy  for  torts  is  joint, 
and    not   several.     It   is    single,    and   not   double.     1    Wms. 
Saund.  291  a,   n. ;  5  T.  R.  649 ;  Esp.  317  ;  6  G.  Bacon,  589  ; 
3  Burr.  1353  ;  Com.  Dig.  Action,  K.  4  ;  Cro.  Jac.  73  ;  Moore, 
762;   Kyd,   112;  3  Mod.   86;   Co.   Litt.   232,  and  n.  1.  (a) 
(1   Tidd,  556,  seems  contra.')      If  the  law   were  otherwise, 
where  an  injury  was  committed  by  twenty  persons,  the  injured 
party  might  maintain  twenty  actions  for  the  same  cause,  in 
order  that  he  might  multiply  his  chances  for  large  damages. 
This  would  be  granting  him  a  favor  at  the  expense  of  the 
public,  who  must  suffer  the  inconvenience,  trouble,  and  ex- 
pense  of  twenty  trials  for  one  and  the  same  injury.     The 
defendants  could  not  prevent  this  excess  of  litigation  by  tender 

(a)  Where  several  are  concerned  in  a  tort,  tUe  recovery  against  one 
will  be  a  bar  (generally)  to  an  action  against  the  others.  1  Chitty,  PI. 
7G,  77;  Cro  Jac.  74;  Com.  Dig.  Action,  K.  4;  2  B.  &  P.  70,  71; 
1   [Wms.?]  Saund.  207  a;   Bull.  N.  P.  20. 

inferred  that  the  writer  intended  to  erase  the  words  "  all  and."  In  the 
first  draft  of  this  opinion  (found  in  Judge  Smith's  files)  the  sentence 
reads,  "He  cannot  sue  two  out  of  three  joint  contractors." 


MAY   TERM,  1809.  281 

Holden  v.  Reed. 

of  damages,  as  they  generally  may  in  the  case  of  several  suits 
for  one  debt.  There  could  be  no  tender  till  judgment  ;  and 
the  plaintiff  may  not  take  judgment  in  one  till  he  has  obtained 
verdicts  in  all,  and  then  take  judgment  on  the  verdict  for  the 
highest  damages,  and  costs  in  all  the  suits. 

One  reason  given  for  the  difference  between  actions  arising 
ex  delicto,  where  each  is  answerable  for  the  whole,  and  actions 
on  joint  and  several  contracts,  where  each  is  answerable  for 
the  whole,  is  that,  in  the  latter  case,  the  debt  or  duty  is  sup- 
posed to  be  certain.  Each  binds  himself  that  he  will  pay  the 
creditor  a  certain  sum,  or  perform  a  certain  duty.  But  dam- 
ages for  a  tort  are  altogether  uncertain  till  reduced  to  a  cer- 
tainty by  a  judgment.  In  this  case,  the  judgment  changes  the 
nature  of  the  demand,  and  the  law  will  not  suffer  a  certainty 
to  be  given  up  for  an  uncertainty.  Com.  Dig.  Action,  K.  4  ; 
2  Show.  441,  494.  There  is  also  another  reason  why  the  same 
cause  of  action  should  not  be  the  subject  of  several  trials ; 
namely,  that  different  verdicts  may  be  given,  which  would 
bring  scandal  on  the  law,  which  delights  in  certainty  and 
uniformity. 

If  these  principles  are  correct,  they  are  decisive  against  the 
present  action  ;  whether  we  consider  it  as  arising  ex  contractu, 
which  is  the  shape  it  takes  in  the  declaration  ;  or  ex  malejicio, 
which  is  the  case  stated.  These  four  persons  jointly  extorted 
from  the  intestate  $11,  or  they  jointly  received  that  sum 
to  his  use ;  for,  as  they  all  assisted  in  compelling  payment, 
they  may  be  all  said  to  receive  the  money.  An  action  has 
been  commenced  on  this  contract,  or  for  this  injury,  and  a 
recovery  had.  (a)  If  considered  as  a  tort,  the  plaintiff  has 
made  his  election  in  suing  Bigsbjs  and  cannot  sue  the  others 
for  the  same  cause.  He  might  have  sued  all  or  any  number 
of  the  parties.  But  now,  his  uncertain  demand  is  reduced  to 
a  certainty  ;  his  cause  of  action  has  passed  in  rem  judicatam  ; 
and  he  shall  not  any  move  vex  courts  of  law  with  redressing 
this  injury  done  to  William  Henry. 

We  come  to  the  same  conclusion,  if  we  consider  this  action 

(a)  In  the  case  of  tort,  it  is  not  necessary  that  execution  should  have 
been  issued  in  the  first  action.     6  G.  Bacon,  G13. 


282  CIIESPIIRE. 


IlolJen  V.  Reed. 


as  founded  on  contract.  It  was  a  joint,  not  a  several,  contract. 
The  plaintiff  shall  not  now  be  heard  to  say  that  Reed  alone 
was  answerable  ;  that  it  was  his  several  contract.  There  can 
be  but  one  judgment  on  a  joint  contract.  That  judgment  has 
been  given.  If  it  had  been  against  the  [)laintiff,  he  shall 
never  agitate  the  merits  again.  If  in  his  favor,  he  has  all  the 
law  allows  him.  By  omitting  to  sue  Reed,  he  discharged  him. 
It  would  be  otherwise,  if  Reed  were  severally  as  well  as  jointly 
liable.  The  pendency  of  an  action  against  one  of  several 
jointly  liable  may  be  pleaded  in  abatement  by  another,  when 
sued  afterwards.  This  is  the  case  in  tort.  6  G.  Bacon,  589 ; 
1  Campb.  60,  61. 

This  action  being  brought  at  Bigsby's  request,  and  for  his 
benefit,  makes  no  difference.  It  does  not  give  Holden  a  right 
to  sue,  if  he  had  no  such  right  independent  of  that  circum- 
stance ;  nor  shall  it  prejudice  the  defendant. 

Judgment  for  defendant  on  nonsuit.^ 

^  I.  A  judgment  against  one  of  two  joint  contractors,  although  unsatis- 
fied, is  a  bar  to  an  action  against  the  other.  King  v.  Hoare,  1844,  13  M. 
&  W.  494;  2  Kent,  Com.  389  a.  The  contrary  decision  of  the  Supreme 
Court  of  the  United  States  in  Sheehij  v.  Mandeville,  1810,  6  Cranch,  253, 
would  not  now  be  followed  in  that  court.  See  Field,  J.,  in  Mason  v. 
Eldred,  1867,  6  Wall.  231,  236-238. 

For  an  exception  to  the  general  rule,  see  Olcott  v.  Little,  1838,  9  X.  H. 
259. 

II.  In  England,  it  is  now  settled  that  a  judgment  against  one  of  two 
joint  wrong-doers,  although  unsatisfied,  is  a  bar  to  an  action  against  the 
other  for  the  same  cause.  Brinsinead  v.  Harrison,  1872,  L.  R.  7  C.  P. 
547;  affirming  L.  R.  6  C.  P.  584. 

The  weight  of  American  authority  is  the  other  way.  Lovejoy  v.  Murray, 
1865,  3  Wall.  1  (and  cases  there  cited);  Elliott  v.  Haijden,  1870,  104  Mass. 
180;  Kni(jht  v.  Nelson,  1875,  117  Mass.  458. 

In  7  Alb.  Law  Jour.  81  (Feb.  8,  1873),  the  Engli.sh-and  American 
cases  are  reviewed,  and  the  decision  iu  Brinsinead  v.  Harrison  approved. 


MAY   TERM,   1809.  283 


Hale  V.  Vesper. 


GRAFTON,    MAY   TERM,    1809. 


Moses  Hale  v.  Thomas  Vesper. 

A  declaration,  containing  the  words  "Anno  Domini,"  is  not  demurrable,  on  the 

ground  that  these  words  are  not  in  the  English  tongue. 
Where  a  note  declared  on  is  stated  to  have  been  made  payable  in  nine  months 

after  date,  it  need  not  be  averred  that  the  time  lias  elapsed  before  the  cora- 

niencement  of  the  action.     This  appears  from  the  date  of  the  writ. 
Semhle,  if  the  acl  damnum  be  expressed  in  figures,  it  is  bad  on  special  demurrer. 

But  it  was  said  that  an  amendment  would  be  allowed  without  costs. 
It  is  a  sufficient  formal  allegation  of  venue  to  add,  after  describing  a  note  dated 

at  C,  in  JNIassachusetts,  the  words  "  at  said  Plymouth  "  (Plymouth,  N.  H.,  being 

mentioned  in  the  writ). 
Whether  an  allegation  of  venue  is  necessary  iu  transitory  actions  in  this  State, 

quaere. 

Assumpsit  on  a  promissory  note. 
Demurrer  to  the  declaration,  (a) 
Causes. 

1.  The  declaration  contains  the  following  words,  in  describing 
the  date  of  the  note  declared  on  :  "  First  day  of  June,  Anno 
Domini  eighteen  hundred  and  seven."  These  words  are  not  in 
the  English  tongue. 

2.  Tlie  note  declared  on  is  stated  to  have  been  payable  in 
nine  months  from  date,  and  it  is  not  averred  that  the  time  had 
elapsed  before  this  action  commenced. 

3.  That  the  ad  damnum  is  expressed  in  figures,  and  not  in 
words. 

4.  There  is  no  certain  venue  expressed  in  the  declara- 
tion. 

5.  The  note  is  alleged  to  have  been  made  payable  at  said 

(a)  Plaintiff  called  of  C,  in  Massachusetts.  Defendant  of  F.,  in 
Vermont.     Quaere,  service? 


284  GRAFTON. 


Hale  V.  Vesper. 


Hale's,  in  Chelmsford;  and,  in  the  declaration,  it  is  alleged 
that  the  plaintiff  was  ready,  at  said  time  and  place,  to  receive 
payment.     This  is  uncertain. 

Eastman,  for  plaintiff. 

Gr.  Woodward  and  Hutchinson  for  defendant. 

Per  Curiam.  I.  [As  to  the  first  objection.] 
Before  our  statute  of  Feb.  9,  1791,  87,  and  after  our  statute 
of  June  21,  1701  (Prov.  Law,  24),  the  English  statutes  of 
4  Geo.  II.  c.  26,  and  6  Geo.  II.  c.  14,  §  5,  which  required 
legal  proceedings  to  be  in  English,  allowed  technical  words 
and  phrases  to  be  used  as  they  had  been  commonly  before  that 
time.  These  statutes  seem  to  have  been  admitted  here.  Our 
forms  of  writs  (N.  H.  Laws,  ed.  1805,  79,  &c.)  have  always 
used  the  words  Anno  Domini,  for  the  year  of  our  Lord.  If 
the  makers  of  the  statute  use  them  in  the  formal  part  of 
the  writ,  we  see  no  reason  why  the  plaintiff  may  not  use 
them  in  his  declaration,  which,  with  us,  makes  a  part  of  the 
writ.^ 

II.  [As  to  the  second  objection.] 

The  answer  to  this  objection  is,  that  it  appears  with  sufficient 
certainty,  without  this  allegation,  that  the  action  has  not  been 
commenced  too  soon.  The  date  of  the  writ  is  matter  of  record. 
Such  an  averment  had  better  be  omitted.  In  good  forms  it  is 
omitted.     Chitty,  246. 

III.  The  third  exception  is  the  most  material,  though  it  may 
seem  to  be  a  small  matter. 

The  English  statutes,  before  mentioned,  allow  writs,  decla- 
rations, and  other  proceedings,  to  be  written  or  printed  with 
the  like  way  of  writing  or  printing,  and  the  like  manner  of 
expressing  numbers  by  figures,  as  have  been  or  are  commonly 
used  in  courts ;  and  with  abbreviations  such  as  are  commonly 
used  in  English :  so  that,«in  all  cases,  it  is  not  necessary  that 
the  matter  should  be  written  in  words  at  length. 

1  See  Smith  v.  Butler,  1852,  25  N.  H.  521;  Berry  v.  Osborn,  1854, 
28  N.  H.  279. 


MAY   TERM,  1809.  285 

Hale  V.  Vesper. 

Some  of  our  judicial  forms  prescribed  by  statute  (N.  H. 
Laws,  ed.  1805,  75)  have  the  date  of  the  year  in  figures. 
In  the  acts  of  our  legislature,  the  date  or  time  of  enacting  is 
also  expressed  in  figures ;  at  least,  as  to  the  day  of  the  month, 
and,  in  ancient  times,  the  month  itself,  (a)  And,  we  believe, 
it  has  not  been  infrequent  for  dates  to  be  expressed  in  figures 
in  declarations.  But  it  has  not  been  usual  to  express  the  ad 
damnum  in  figures ;  and  as  this  is  a  very  material  part  of  the 
declaration,  and  there  is  no  usage,  as  far  as  we  know,  for  ex- 
pressing it  in  figures,  and  as  the  statute  does  not  save  it,  we 
incline  to  the  opinion  that,  for  this  cause,  the  declaration 
is  bad. 

But,  as  this  is  the  first  determination  on  the  point,  we  would 
allow  amendment,  without  costs,  especially  as  the  defendant 
has  had  a  continuance. 

IV.  [As  to  the  fourth  objection.] 

The  fact  is  not  so.  Tlie  declaration,  in  this  particular,  is 
strictly  correct.  Chelmsford  is  mentioned,  because  mentioned 
in  the  note.  And  "  at  said  Plymouth  "  (which  Plymouth  was 
mentioned  in  the  writ)  is  added  for  a  venue.  In  transitory 
actions,  in  this  State,  it  may  well  be  doubted  whether  any 
venue  is  necessary;  inasmuch  as  it  cannot  be  changed,  and 
the  law  has  determined  in  what  county  the  action  shall  be 
brought,  or  given  the  plaintiff  the  election  between  two  or 
more.  The  trial  must  be  in  that  county  in  which  the  action  is 
brought ;  the  jury  must  be  of  that  county.  Bringing  the 
action  in  the  county  of  Grafton  is  of  itself  a  venue  :  and 
neither  in  England  at  this  day,  nor  ever  in  this  State,  must 
the  jury  come  from  any  particular  part  of  the  county.  Per- 
haps, however,  the  precedents  require  a  venue  to  be  alleged, 
and  the  omission  may  be  taken  advantage  of  on  special  de- 
murrer.^ 

(a)  10th  2  m°  [4  month?]  44,  means  10th  day  of  April,  1644,  in  the 
ancient  records  of  this  State,  1G80. 

^  Griffin  v.  Huse,  Rockingham,  February  Term,  1808,  10  Manuscript 
Reports,   305,   was  an   action   of  assumpsit.     The   writ  described   both 


286  GRAFTOX. 


Ilale  V.  Vesper. 


V.   [Ais  to  the  fifth  objection.] 

As  to  time,  it  must  be  understood  to  mean  when  the  note 
became  payable ;  and,  as  to  place,  that  he  was  ready  at  said 
Hale's,  in  said  Chelmsford,  viz.  at  said  Plymouth  ;  because  it 
is  before  alleged  that  Chelmsford  in  Massachusetts  is  in  Ply- 
mouth in  this  State  ;  and  once  alleging  so  palpable  an  untruth, 
one  would  think,  was  enough  in  one  declaration.  1  Wms. 
Saund.  229.  But,  the  truth  is,  this  part  of  the  declaration,  as 
also  the  words  ^'- Antio  Domini,^^  might  have  been  omitted,  as 
well  as  that  nine  montlis  liad  elapsed  in  the  course  of  a  year. 
This  is  surplusage  which  does  not  vitiate,  even  if  it  were  un- 
certain, which  it  is  not. 

Defendant  default.^ 

parties  as  residents  of  Rockingham  County.     Upon  general  demurrer,  the 
defendant  relied  on  the  objection  that  no  venue  was  stated. 

"  But  The  Court  were  of  opinion  that  the  declaration  was  well  enough 
on  general  demurrer.  By  our  statute  (Laws,  ed.  1805,  87),  this  action  — 
let  the  contract  have  been  made  where  it  may  —  must  be  brought  in  this 
county.  The  plaintiff  has  no  election.  And  the  cause  must  be  tried  by 
a  jury  of  this  county.  The  venue,  therefore,  is  a  mere  matter  of  form, 
and  not  of  substance.  Its  omission  can  only  be  taken  advantage  of  by 
special  demurrer."  Demurrer  withdrawn. 

1  In  Berry  v.  O^^horn,  1854,  28  N.  H.  279,  it  was  held,  that  a  special 
demurrer  does  not  lie,  under  our  statute  for  any  defect  or  want  of  form 
only,  nor  for  any  error  or  mistake,  where  the  person  and  case  may  be 
rightly  understood  by  the  Court. 


MAY   TERM,  1809.  281 


Wilson  V.  Eastman. 


Thomas  Wilson  v.  B.  Eastila.n. 

New  trial  granted  on  terms. 

Assumpsit  on  three  promissory  notes.  Writ  dated  Feb.  17, 
1807. 

Pleas :  general  issue,  and  statute  of  limitations. 

Replication :  new  promise. 

At  the  trial,  last  Terra,  Livermore,  J.,  summed  up  to  the 
jury.  He  seemed  inclined  to  think  the  evidence  produced  by 
the  plaintiff  not  sufficient  to  take  the  case  out  of  the  statute 
of  limitations. 

The  jury  found  for  the  defendant.     Motion  for  a  new  trial. ^ 

Smith,  C.  J.,  at  the  trial,  thought  the  plaintiff  negligent  in 
not  producing  more  testimony,  as  it  appeared,  from  the  cir- 
cumstances then  disclosed,  he  might  easily  have  done  it ;  but 
thought  this  testimony,  if  believed,  sufficient  to  remove  the 
bar  of  the  statute  ;  but  he  did  not  state  any  thing  to  the  jury. 
At  this  Term,  he  delivered  the  opinion  of  the  Court  [to  the 
effect  that  the  testimony  at  the  trial  was  competent  evidence 
of  a  new  promise]. 

Verdict  set  aside  on  terms ;  plaintiff  waiving  review  and  to 
tax  no  costs  for  last  and  present  Term. 

A  review  would  not  be  of  any  avail,  as  defendant  was  of 
Vermont,  and  there  was  bail  in  this  action. 

1  Statement  by  compiler. 


288  GRAFTON. 


Eldridge  v.  Bush. 


Ztjar  Eldridge  v.  John  Bush  and  Levi  Parks. 

An  imprisoned  debtor,  who  had  given  bond  for  the  liberty  of  the  jail  limits,  was 
entitled  to  liis  discharge,  if  the  creditor  failed  to  make  payment  in  advance, 
for  his  support.  Six  weeks  before  another  payment  by  the  creditor  would  be 
due,  the  debtor,  with  intent  to  deceive  the  creditor,  and  induce  him  to  believe 
there  had  been  an  escape,  and  so  not  to  advance  any  more  money,  gave  out, 
and  caused  it  to  be  reported,  that  he  was  about  to  go  out  of  the  limits  to  Con- 
necticut, and  on  the  same  day  concealed  himself  in  a  swamp  within  the  limits, 
and  continued  there  concealed,  without  the  plaintiff's  knowledge,  for  six  weeks, 
and  until  the  day  after  the  time  for  making  the  next  payment.  The  creditor 
was  thereby  deceived,  and  induced  to  believe  that  the  debtor  had  escaped,  and 
so.omitted  to  advance  the  money  for  the  debtor's  support.  After  the  creditor 
had  so  failed  to  make  payment,  the  debtor,  claiming  that  he  was  for  this  rea- 
son discharged,  went  out  of  the  limits.  The  debtor's  sureties  in  the  prison 
bond  were  privy  to  this  deception  and  concealment  on  the  piirt  of  the  debtor. 

In  an  action  on  the  prison  bond  against  the  sureties,  held,  that  the  sureties  could 
not  avail  themselves  of  an  omission  by  the  creditor,  thus  induced  by  the  fraud 
of  the  debtor,  and  that  the  creditor  could  recover  against  the  sureties  for  an 
escape. 

The  opinion  of  the  Court  was  delivered  b}'^  Smith,  C.  J.^ 
This  is  an  action  of  debt  on  a  bond  made  by  defendants  as 
sureties  of  one  Howard  Phelps ;  with  condition  that  Phelps, 
who  was  then  in  execution  at  the  plaintiff's  suit,  should  con- 
tinue a  true  prisoner  within  the  limits  of  the  prison  at  Haver- 
hill, until  he  should  be  lawfully  discharged,  without  commit- 
ting any  escape  until  such  discharge.  Tiie  defendants  plead 
performance  of  the  condition  by  Phelps.  The  plaintiff,  in 
reply,  assigns  a  breach  ;  viz.,  escape  from  the  limits,  Oct.  17, 
1805,  6  A.  M. 

Defendants,  admitting  the  escape,  rejoin  that  Phelps  took 
the  oath  prescribed  in  the  act  for  the  ease  and  relief  of  per- 
sons imprisoned  for  debt,  on  Oct.  4,  1804,  1  P.  M.,  which  was 
duly  certified  to  the  prison  keeper ;  that  he  paid  past  charges, 
and  continued  a  true  prisoner  within  the  limits  till  Oct.  17, 

1  [As  the  nature  of  the  pleadings  appears  from  the  opinion  of  the 
Court,  a  fuller  statement  contained  in  the  manuscript  is  here  omitted.] 


MAY   TERM,  1809.  289 

Eldridge  v.  Bush. 

1805  ;  that  neither  the  creditor,  nor  any  person  for  him,  paid, 
weekly,  112  cents  a  week  for  his  support,  after  he  took  the 
oath,  until  Oct.  17,  1805;  and  that  thereupon  he  became 
discharged,  and  was  on  the  same  day  discharged  by  the  prison 
keeper,  and  went  out  of  the  limits  as  he  lawfully  might,  (a) 

The  plaintiff,  in  his  surrejoinder,  admits,  by  not  denying,  all 
that  is  stated  in  the  rejoinder,  but  attempts  to  excuse  the 
non-payment  of  the  money,  or,  in  other  words,  to  show  that 
the  debtor  did  not  become  discharged  on  Oct.  17,  1805, 
notwithstanding  creditor's  neglect  to  pay  for  his  support, 
by  alleging  that  he  paid  for  fifty-four  weeks,  that  is,  to  Oct. 
IG,  1805,  inclusive  ;  that  he  was  ready,  on  that  day,  to  pay 
the  allowance  for  another  week,  but  was  prevented  by  the 
fraudulent  acts  of  the  debtor  ;  namely,  that  the  debtor, 
on  Sept.  10,  1805,  with  intent  to  deceive  and  defraud 
the  plaintiff  of  his  debt,  and  to  induce  him  to  believe  that 
he  had  committed  an  escape,  and  thereby  induce  him  not  to 
furnish  money  beyond  the  fifty-four  weeks,  i.  e.  to  lodge 
money  with  the  jailer  on  or  before  Oct.  16,  1805,  gave  out 
and  caused  to  be  reported  that  he  was  about  to  go  out  of  the 
limits  and  go  to  Connecticut,  and  on  the  same  day  concealed 
himself  in  a  swamp  within  the  limits,  and  continued  there, 
without  the  plaintiff's  knowledge,  till  Oct.  17,  1805  ;  that 
plaintiff  was,  by  these  means,  induced  to  believe,  and  did 
believe,  that  he  had  escaped,  and  so  did  not  pay  or  advance 
any  more  money  for  the  debtor's  support  ;  and  to  this  fraudu- 
lent conduct  of  Phelps  defendants  were  privy. ^ 

To  this  surrejoinder  the  defendants  demur  ;  and  the  question 
is,  whether  this  matter  excuses  the  non-payment  of  the  money, 

(a)  Should  not  defendant,  in  his  rejoinder,  have  stated  how  long  the 
phvintiff  did  pay? 

1  In  the  fuller  statement  of  the  pleadiugs,  the  place  of  concealment  is 
described  as  "  a  certain  solitary  and  unfrequented  swamp,  withiu  the 
limits  of  said  prison-yard,  distant  180  rods  from  the  prison  "  The 
complicity  of  the  defendants  is  thus  alleged:  "  And  the  plaintitT  further 
says,  that,  of  the  said  fraudulent  concealment,  secretion,  and  deception, 
the  said  Parks  and  Bush,  the  defendants,  were  then  and  there,  on  said 
tenth  day  of  September,  1805,  well  knowing,  and  were  privy  to  the  same." 

19 


290  GRAFTON. 


Ehlridge  o.  Bush. 


and  induces  a  forfeiture  of  the  bond  by  debtor's  departing 
from  the  limits  on  Oct.  17,  1805. 

We  will  first  consider  the  case  as  it  would  be  if  this  plea 
were  by  Howard  Phelps,  or  if  defendants  had  practised  the 
fraud  to  which  they  are  alleged  to  have  been  privy ;  i.  e.,  told 
the  lies  stated  in  the  surrejoinder,  and  concealed,  or  assisted  to 
conceal,  the  debtor. 

On  Oct.  4,  1804,  the  debtor  became  and  was  discharged, 
unless  money  paid  for  his  support;  and,  whenever  there 
was  no  money  in  advance,  he  was  discharged  ;  i.  e.,  on  de- 
fault or  neglect  to  pay,  on  Oct.  16,  1805,  112  cents,  the 
debtor  was,  in  law,  discharged  immediately  after  that  day  had 
expired,  and  might  lawfully  go  away,  without  forfeiting  the 
bond,  at  any  time  after  twelve  that  night. 

But  cases  may  easily  be  supposed  where,  by  the  conduct  of 
the  person  for  whose  use  the  money  was  to  be  paid  for  sup- 
port, the  discharge  would  not  attach,  notwithstanding  the 
words  of  the  statute,  though  the  money  should  not  be  lodged. 
Suppose,  instead  of  the  money  being  required  to  be  paid  to 
the  prison-keeper  for  the  use  of  the  prisoner,  it  should  have 
been  payable  to  the  prisoner  himself,  and  he  had  refused  to 
accept  it ;  or  suppose,  as  the  law  now  is,  that  the  debtor 
forbid  the  prison-keeper  from  receiving  it.  In  these  cases, 
the  offer  to  pay  would  be  equivalent  to  actual  payment. 
Suppose  the  money  payable  to  the  prisoner  himself,  and  he 
should  secrete  himself,  so  that  the  creditor  could  not  find  him 
to  pay  or  tender.  This  would  be  equivalent  to  actual  pay- 
ment. Suppose,  as  the  law  is,  that  the  jailer  and  debtor 
sliould  collude,  so  as  to  prevent  payment;  e.  g.,  the  jailer 
keeping  out  of  the  way,  shutting  up  the  house,  and  having 
no  agent  at  the  jail,  to  whom  creditor  could  pay  the  money. 
Suppose  the  debtor,  finding  the  creditor  coming  witli  the 
money  at  eleven  o'clock,  P.  M.,  on  the  last  day,  should  rob 
him  of  the  money ;  or  unlawfully  arrest  him  ;  or  procure  him 
to  be  arrested,  carried  off,  and  so  hindered  from  paying. 
Upon  every  principle  of  justice,  this  would  excuse  the  non- 
payment. The  law  would  not  permit  the  wrong-doer  to  take 
advantage  of  his  own  wrong,  to  procure  a  discharge  by  such 


MAY   TERM,  1809.  291 

Eldridfje  '■.  Bush. 

means,  or  procure  his  dorinaut  discliarcje  to  operate  or  take 
effect  I)}-  such   unjust  means.     The  hiw  enjoins  on  tlie  cred- 
itor who  would  detain   his  debtor  in  prison  every  thing  he  can 
do  to  support  him  ;  but,  if  the  debtor  lefuses  the  money,  the 
creditor    cannot    compel    him    to   take  it ;    or,  if   tlie    debtor 
himself  prevent    the   payment,    he    cannot   complain    of  the 
non-payment.     There  is,  in  that  case,  no  default  or  neglect 
(the  words  of  the  statute)  in  the  creditor,  and  there  must 
be  such  before  the  prisoner  becomes  discharged.     The  case  is 
analogous  to  that  of  bail.     If  they  do  not  surrender  the  body 
of  the  principal,  so  that  he  may  be  taken  in  execution,  they 
are  themselves  obliged  to  satisfy  the  judgment ;  but  they  may 
plead,  in  excuse  for  not  surrendering  the  principal,  that  they 
were  hindered  from  so  doing  by  the  acts  of  the  creditor.     He 
shall  not,  by  any  acts  of  his,  abridge   the  rights  of  the  bail. 
If   he  does,  he    shall  not  take  advantage   of  the  want  of  a 
snrrender.     2  Manuscript  Essays,  Bail,  209,  211.     In  the  case 
of    Winyate  v.  Hayes^  bail  of  lleed^  decided  at  Strafford,  Sep- 
tember Term,  1808,  11  Manuscript  Repoits,  337,  it  was  held, 
that,  where  the  bail  were  prevented,  by  the  acts  of  the  creditor, 
from  surrendering  the  principal,  it  was  a  discharge,  and  might 
be  pleaded  in  excuse  to  the  scire  facias.     There  the  creditor 
had  arrested  the  principal,  and  had  him  in  execution,  in  an 
action  of  debt,  on  the  same  judgment,  in  Massachusetts.     And 
yet  our  statute  makes  provision  only  for  a  discharge  by  sur- 
render.    The   bail  are  in  no  fault.     The  creditor  has  put  it 
out  of  the  [)ower  of  the   bail  to  surrender,  and  therefore  shall 
take  no  advantage  of  the  want  of  surrender.     It  would  seem 
reasonable  to  say  that,  if  the  non-payment  happens  through 
the   fraud   of  the   debtor,    that   the   same   consequences  shall 
follow.     Fraud    vitiates    every    thing.      4   T.    R.    837.     This 
principle  is  applied  ad  Iwminem.     He  who  is  guilty  of  a  fraud 
shall  never  be   permitted   to  avail  himself  of  it.     If  Phelps 
practised  such  fraud  as  prevented  the  payment  of  the  money 
for  his  support,  he  shall  not  be  heard  to  complain  of  the  non- 
payment, nor  shall  he  derive  any  advantage  from  it  ;  and  he 
on  whom  it  was  practised   shall  suffer  as  little  injury  as  possi- 
ble from'' it.     Phelps  may  obtain  his  release  by  all  legal  and 


292  GRAFTON. 


Eldridge  v.  Bush. 


honest  means,  and  no  means  are  legal  that  are  not  honest. 
But  he  shall  not  obtain  his  release  by  fraud.  Suppose  the 
debtor  practise  fraud,  to  obtain  his  release  from  the  creditor. 
Such  a  discharge  would  neither  avail  him  nor  his  sureties  ; 
because  the  discharge  would  be  void,  and  a  void  discharge  is 
no  discharge.  For  the  same  reason,  if  he  practise  fraud  to 
prevent  the  payment  of  the  money,  in  order  that  the  discharge 
may  come  into  operation,  the  end  intended  shall  not  be  an- 
swered, it  shall  be  as  though  the  money  had  been  paid. 

If  this  be  correct,  the  only  question  will  be.  Whether  the  sur- 
rejoinder states  facts  which,  in  law,  amount  to  a  fraud,  facts 
which  may  have  been  presumed  to  have  occasioned  the  non- 
payment of  the  money  ?  The  surrejoinder  must  state  the 
means  by  which  the  fraud  was  committed  ;  ^  i.  e.,  it  must  state 
certain  declarations  and  acts  of  the  debtor  which  occasioned 
the  non-payment  of  the  money,  and  it  must  appear  that  these 
means  were  adequate  to  produce  the  effect.     3  T.  R.  60. 

The  situation  of  the  parties  is  to  be  considered.  The  debtor 
was  in  execution  ;  and,  having  obtained  a  certificate  of  dis- 
charge, he  was  entitled  to  be  liberated  from  prison,  if  the 
creditor  failed  to  pay  for  his  support.  But  he  had  no  right  to 
bring  about  or  procure  that  failure,  which  was  to  free  him 
from  imprisonment,  by  fraud  or  deceit.  The  creditor  was 
entitled  to  the  body  of  his  debtor  in  execution  as  long  as  he 
should  be  guilty  of  no  default  in  the  payment  of  the  weekly 
allowance.  The  creditor  had  a  right  to  pay.  He  has  an  interest 
in  the  payment,  which  was,  in  the  eye  of  the  law,  valuable  to 
him.  The  law  presumes  it  may  have  a  tendency  to  procure 
satisfaction  of  the  debt.  If  it  did  not  so  presume,  it  would 
not  permit  it.  It  presumes,  and  that  justly,  that  the  tribunal 
who  administered  the  oath  may  have  been  imposed  upon.  It 
is  lawful  for  the  creditor  to  retain  the  body  on  payment  of 
the  weekly  allowance,  in  the  same  manner  and  for  the  same 
purpose  as  it  was  lawful  and  useful  for  him  to  imprison  him 
at  first.  Imprisonment  of  the  body  is  a  means  to  compel  pay- 
ment of  the  debt.  It  follows  that,  if  any  one  hinder  him,  it  is 
a  wrong,  for  which  an  action  would  lie.     Suppose  a  stranger 

1  But  see  Eoitt  v.  Holcomb,  1851,  23  N.  H.  535. 


MAY   TERM,  1809.  293 

Eldridge  v.  Bush. 

prevent  the  payment  by  force  or  fraud.  Suppose  a  stranger 
slioukl  inform  tlie  creditor,  on  Oct.  16,  1805,  that  Howard 
Phelps  had  escaped,  when  he  knew  he  had  not. 

The  acts  here  alleged  are  false  declarations  of  his  intention 
to  commit  an  escape,  made  Sept.  10,  1805,  and  the  consequent 
concealment  of  his  body  till  Oct.  17,  following;  and  both  are 
stated,  in  the  surrejoinder,  to  have  been  done  fraudulently,  and 
with  intent  to  deceive  the  plaintiff  and  defraud  him  of  his 
debt ;  or,  in  other  words,  to  produce  neglect  of  paying  the 
weekly  allowance. 

With  respect  to  the  false  declarations  of  his  intention  to 
escape,  standing  alone,  I  think  they  would  not  be  sufficient. 
Though  it  is  immoral  to  utter  a  falsehood,  yet  it  is  not  always 
actionable.  An  action  cannot  be  supported  for  telling  a  bare, 
naked  lie,  knowing  or  not  knowing  it  to  be  so,  and  without 
any  intention  to  injure  and  deceive  another  person.  But 
an  action  lies  for  every  deceit  wdiich  injures  another.  Now 
every  lie  is  not  a  deceit,  in  legal  contemplation,  though  every 
deceit  comprehends  a  lie.  To  make  a  lie  a  deceit,  it  must  be 
told  with  design  to  deceive  and  injure  a  particular  person,  (a) 
This  was  of  that  description  ;  but  of  itself,  and  independent  of 
the  after  concealment  of  the  person,  it  would  not  be  an  action- 
able fraud,  because  the  declaration  was  of  intention  merely. 
The  creditor  ought  not  to  confide  in  such  declarations  alone, 
unconnected  with  other  acts.  The  intention  never  was  carried 
into  execution,  and  never  was  intended.  The  declarations 
made  but  a  part  of  a  system  or  plan  of  deception.  Suppose 
the  debtor  never  to  have  gone  beyond  the  limits,  but  should 

(a)  See  Mr.  Justice  Duller,  in  Pasley  v.  Freeman,  3  T.  R.  56. 
The  same  judge  once  laid  down  the  doctrine  in  broader  terms;  viz., 
that,  if  one  man  tells  another  a  falsehood,  by  which  he  is  injured,  the 
deceived  person  has  his  remedy  by  an  action.  Pearson  v.  Morgan,  2  Bro. 
Ch.  389.  But  it  seems  now  holden  that  there  must  be  the  intention  to 
deceive,  or  a  falsehood  is  not  actionable.  See  Uaycraft  v.  Creasy,  2  East, 
92,  by  three  judges  against  the  Chief  Justice,  that  if  a  person  assert 
another  was  worthy  of  credit,  of  his  own  knowledge,  when  he  was  not  so, 
yet,  if  the  assertion  were  made  bondjide,  and  with  a  belief  of  the  truth  of 
it,  it  is  not  actionable.  Three  things  must  concur:  a  falsehood,  told  with 
design  to  injure,  and  actual  injury  the  consequence. 


294  GRAFTON. 


Eldridge  v.  Bush. 


hire  a  person  to  inform  the  creditor  that  he  had,  and  slioiild 
furnish  him  with  circumstances,  so  that  a  prudent,  cautious 
man  would  give  credit  to  the  assertion,  —  we  will  suppose  he 
even  goes  so  far  as  to  furnish  an  afiidavit  of  the  fact,  —  the 
creditor  then  omits  to  advance  any  more  money,  and  the 
debtor  leaves  the  prison  ;  creditor  sues  the  bond,  and  the  wit- 
ness testifies  truly.  Would  not  this  fraud  estop  the  debtor 
from  availing  himself  of  the  default  or  neglect  to  furnish 
money  ?  Here  the  debtor  procured  a  falsehood  to  be  told, 
and  it  is  the  same  as  if  he  told  it  himself.  We  will  suppose  it 
done  with  intention  to  deprive  creditor  of  his  right  to  retain 
the  debtor  in  prison,  and  the  creditor  injured.  Suppose,  with 
the  same  intention,  debtor  declares  to  creditor  that  he  has 
passed  the  limits,  when  he  has  not ;  that  the  bond  is  forfeited, 
when  it  is  not. 

Upon  the  whole,  under  this  head,  there  are  falsehoods, 
which  would  be  a  deceit  or  fraud,  and  which  would  estop  the 
debtor  from  taking  advantage  of  the  neglect  to  pay  the  money  ; 
but  the  present  standing  alone  is  not  of  that  description. 

So,  perhaps,  the  mere  concealment  would  not  be  a  fraud, 
with  whatever  view  it  was  done.  But  it  is  impossible  to 
entertain  any  doubt  that  the  declaration  of  the  intention  to 
escape  and  the  consequent  concealment,  coupled  together,  is  an 
actionable  deceit  or  fraud.  If  done  by  a  stranger,  it  would 
subject  him  to  an  action.  If  by  the  debtor,  it  shall  not  avail 
him.  He  shall  derive  no  advantage  from  it.  The  three 
ingredients  to  constitute  a  fraud,  deceit,  or  actionable  false- 
hood, concur  ;  viz.,  a  false  declaration,  accompanied  with  the 
act  of  concealment,  done  with  an  intention  to  deceive  and 
injure,  and  actually  attended  with  damage.     3  T.  R.  58.  (a) 

It  may  be  said  that  it  was  the  folly  of  the  creditor  to  confide 
in  these  declarations  followed  by  these  acts.  We  have  ad- 
mitted that  it  would  be  so  as  it  respects  the  mere  declarations 
of  intention  unaccompanied  by  any  acts.     But  I  think  no  such 

(a)  To  charge  defendant  for  false  assertion  as  to  the  circumstances  of 
a  third  person,  it  must  appear  that  the  lie  was  told  for  the  purpose  of 
imposing  on  the  plaintiff,  and  that  plaintiff,  relying  on  the  information, 
■was  deceived.     See  Peake  (Day),  226  and  note  (cases  cited). 


MAY    TERM,   1800.  295 

Eldridge  v.  Bush. 

folly  is  imputable  to  the  creditor  on  the  facts  stated  in  the 
surrejoinder.  The  creditor  had  no  means  of  detecting  the 
deceit,  or  of  arriving  at  certainty.  He  would  be  liable  to  an 
action  of  trespass  if  he  were  to  attempt  to  search  the  whole 
prison-yard.  The  prison-keeper  may  have  been  ignorant  of 
the  matter.  I  do  not  know  how,  in  many  cases,  the  creditor 
could  have  better  or  stronger  evidence  than  the  creditor,  in 
this  case,  had  of  the  escape  of  his  debtor.  He  was  not  to  be 
seen  within  the  limits  for  five  weeks,  and  he  had  previously 
declared  his  intention  of  going  away.  If  it  be  said  the  cred- 
itor might  still  have  lodged  the  money  witli  the  jailer,  the 
answer  is.  He  might  have  so  done,  but  would  a  prudent  man 
do  it ;  was  he  bound  to  do  it ;  had  he  any  motive  for  doino-  it  ? 
After  an  escape,  if  he  lodged  money,  I  do  not  know  that  he 
could  recover  it  back.  When  the  debtor  has  concealed  him- 
self, I  think  it  is,  at  least,  such  an  act  as  estops  him  from  taking 
advantage  of  the  non-payment  of  the  money,  which  his  own 
acts  have  rendered  apparently  useless  and  unnecessary.  Here 
the  creditor  did  not  deceive  himself.  He  was  guilty  of  no 
negligence ;  but  the  debtor  beguiled  him,  and  he  did  not 
pay. 

If  the  facts  stated  in  the  surrejoinder  had  been  traversed, 
to  charge  defendants,  jury  must  have  found  that  there  was  an 
intention  to  deceive  and  injure,  that  the  facts  and  declarations 
existed,  and  that  they  were  followed  by  the  consequence  stated, 
i.  e.  that  they  occasioned  the  default  or  neglect  to  pay  tiie 
weekly  allowance.  When  this  is  the  case,  I  feel  no  difficulty 
in  saying  that  the  debtor  practised  a  fraud,  and  that  the  cred- 
itor is  not  chargeable  with  gross  negligence,  or,  indeed,  with 
any  negligence,  in  giving  credit  to  the  deception,  or  in  being 
deceived.  It  would  be  folly  in  the  creditor  to  neglect  payino- 
because  the  debtor  had,  in  conversation,  said  he  should  forfeit 
his  bonds,  or  because  he  did  not  see  him  in  the  jail  or  yard 
for  a  time.  But  it  was  not  folly  to  believe  that  he  had  escaped, 
when  he  had  said  he  intended  to  go,  and  actually  disappeared, 
and  was  not  seen  for  the  space  of  five  weeks.  The  common 
prudence  of  man  is  not  sufficient  to  guard  against  such  deceit. 
The  law  does  not  refuse  relief  against  deceit,  in  cases  where  it 


296  GRAFTON. 


Eldridge  v.  Bush. 


is  possible  to  guard  against  it  by  a  very  high  degree  of  care 
and  circumspection,  but  where  the  ordinary  and  usual  care  and 
diligence  is  not  sufficient.  If  it  did,  the  law  would  be  pre- 
cisely what  knaves  would  wish  it  to  be.  For  knaves  are  cer- 
tainly wiser  in  their  generation  than  honest  men.  Such  laws 
would  not  be  adapted  to  mankind  as  they  are,  but  would  be 
holding  up  a  bounty  for  cunning,  and  encouragement  to 
knavery.  All  laws  stand  on  the  best  and  broadest  basis  which 
go  to  enforce,  not  weaken,  moral  and  social  duties. 

It  m-ay  be  said  that  a  debtor  in  jail  may  innocently  amuse 
himself  with  uttering  declarations  of  his  intention  to  go  away 
when  he  lias  no  such  serious  intentions,  merely  that  he  may 
tease  his  creditor,  and  that,  if  he  prefers  a  swamp  to  the 
village  at  Haverhill,  he  may  lawfully  do  it ;  his  creditor  cannot 
complain  that  he  prefers  one  part  of  the  jail-yard  to  another. 
All  this  may  be  true,  but  I  say,  nevertheless,  that  a  man  may 
not  assert  that  which  he  knows  will  deceive  ;  that  he  cannot 
do  these  things  with  intention  to  injure  his  creditor,  who  is 
actually  injured  thereby,  and,  after  all,  take  advantage  of  these 
acts  and  derive  a  benefit  from  this  very  injury.  Such  acts  are 
as  repugnant  to  law  as  they  are  to  morality.  The  intention 
here  is  very  material.  These  are  not  words  merely  thrown 
out  at  random  (or  going  into  a  swamp  without  any  intention 
of  hurting  any  one),  but  which  the  creditor  was  foolish  enough 
to  act  upon  and  give  credit  to.  The  quo  animo  is  a  great 
part  of  the  gist  of  the  action.  It  is  this  which  constitutes 
these  declarations  and  these  acts  a  fraud,  a  deceit,  which  the 
law  abhors.  This  wicked  view,  or  fraudulent  intention,  is 
stated  in  the  surrejoinder  and  admitted  by  the  demurrer. 

We  have  now  considered  the  case  as  it  would  stand  if  this 
plea  were  made  by  Howard  Phelps,  or  as  it  would  be  if  de- 
fendants were  alleged  to  have  made  the  false  declarations  and 
done  the  acts  in  this  plea  imputed  to  Howard  Phelps.  But 
it  is  here  stated  that  defendants  were  privy  and  knowing  to 
the  false  declarations  and  the  matter  of  concealment  ;  not  that 
they  were  parties  or  actors  in  tlie  fraud. 

It  is  very  certain  no  action  could  be  maintained  against  the 
defendants  merely  for  being  privy  to  the  matters  charged  in  tlie 


MAY   TERM,  1809.  297 

Eldridge  v.  Bush. 

surrejoinder.  Fraud  vitiates  every  thin<? ;  but  this  is  only  to 
be  applied  ad  hominem.  He  who  is  guilty  of  a  fraud  shall 
never  be  permitted  to  avail  himself  of  it.  4  T.  R.  337,  338. 
Generall}^  speaking,  an  innocent  person  shall  not  suffer  by  the 
fraud  of  another.  But  let  us  see  how  the  defendants  are  to 
be  charged.  They  undertook  that  Howard  Phelps  should  not 
commit  an  escape  until  lawfully  discharged.  Now  suppose  he 
forge  a  discharge,  and  escape.  Suppose  he  fraudulently,  or 
by  force,  obtain  one,  and  then  escape.  Sureties  will  be  an- 
swerable for  the  escape,  though  not  for  the  unlawful  act.  So, 
here,  defendants  undertook  that  Howard  Phelps  should  not  go, 
unless  creditor  make  default  or  neglect  payment  of  the  weekly 
allowance.  In  law  here  has  been  no  default.  In  law,  under 
the  circumstances  of  this  case,  creditor  not  obliged  to  pay  ; 
debtor  not  discharged  by  the  non-payment.  Here  was  an 
escape  when  no  lawful  discharge.  The  discharge  dated  Oct. 
4,  1804,  never  did  attach  or  take  effect. 

To  show  that  sureties  are  affected  by  the  acts  of  the  debtor, 
the  principal,  and  answerable  when  no  payment  in  fact 
made,  we  may  instance,  again,  the  case  of  refusal  to  receive  on 
tender,  or  avoiding  tender,  by  debtor  when  the  money  [for  his 
support]  payable  to  him.  Here  the  sureties  would  doubtless 
be  liable,  though  no  actual  payment.  So  in  the  case  of  pay- 
ment prevented  by  force  or  fraud.  In  short,  sureties  under- 
take that  the  debtor  shall  remain  a  true  prisoner  till  discharged, 
or  till  default  of  payment.     In  those  cases  there  is  no  default. 

Judgment  for  plaintiff .  (a) 

(a)  See,  as  to  prison  bonds,  2  Johns.  Cas.  205;  Chip.  25;  2  G.  Bacon, 
5  2    -52i.     Discharge  fraudulently  obtained  counterniandable. 

A  discharge  from  the  prison  rules,  under  insolvent  act  of  Virginia, 
although  obtained  by  fraud,  is  a  discharge  in  due  course  of  law;  and, 
upon  such  discharge,  no  action  can  be  maintained  on  the  prison  bond. 
Simms  v.  Slocum,  3  Cranch,  300;  Slocum  v.  Shnms,  5  Cranch,  3G8.  If  the 
magistrate  granting  the  discharge  incompetent,  discharge  wholly  void 
(incompetent  on  account  of  interest).     Ammidon  v.  Smith,  1  Wheat.  447. 


298  HILLSBOROUGH. 


Boynton  v.  Emerson. 


HILLSBOROUGH,    OCTOBER   TERM,    179G. 


Boynton  v.  Emerson. 

W.  was  indebted  to  B.  in  S upon  a  note,  payable,  in  neat  stock,  at  a  certain 

place  in  S  ,  on  a  certain  day,  tlie  stock  to  be  appraised  by  indifferent  men.  At 
tlie  time  and  place  appointed,  the  creditor  did  not  appear;  but  tlie  stock  was 
appraised,  and  turned  out  into  the  liijriivvay.  E.  took  the  creatures  into  his 
possession  to  prevent  their  starving.  This  was  in  December,  1791.  At  sundry 
times,  the  original  debtor,  W.,  and  E.  requested  B.  to  take  the  cattle  away, 
which  he  as  often  refused,  declaring  he  would  have  nothing  to  do  with  them. 
He  sued  W.  on  the  note,  but  became  nonsuit.  In  1795,  having  delivered  up 
the  note,  he  demanded  the  cattle  of  E.,  who  refused  to  deliver  them,  unless  paid 
for  keeping. 

On  trover  for  the  cattle  by  B.  against  E.,  held,  that  he  could  not  recover-  the 
property  did  not  vest  in  him  ;  if  it  did,  he  abandoned. 

Qucere,  of  E.'s  lien  for  expenses  of  keeping. 

This  was  an  action  of  trover,  for  the  conversion  of  two  four- 
year  old  oxen,  two  cows,  and  one  steer. 

The  defendant  pleaded  not  guilty. 

The  evidence  of  the  property  in  the  plaintiff,  and  conversion 
by  the  defendant,  was,  in  substance,  as  follows:  — 

The  plaintiff  held  a  note  against  one  Peter  Wright,  of  Stod- 
dard, for  the  payment  of  a  certain  sum,  by  a  certain  day,  in 
neat  cattle,  to  be  delivered  at  a  certain  place  in  Stoddard,  and 
to  be  appraised  by  indifferent  men.  At  the  time  and  place 
mentioned  in  the  note,  the  creditor  did  not  appear.  The  debtor 
produced  the  cattle  ;  they  were  appraised  according  to  the 
contract,  and  were  sufficient,  according  to  the  appraised 
value,  to  discharge  the  note.  The  cattle  being  turned  into 
the  highway,  and  it  being  winter-time,  and  the  former  owner 
refusing  to  take  care  of  them,  the  creditor  living  in  Massachu- 
setts, the  defendant,  to  prevent  their  starving,  took  them  irito 
his  care.  This  was  in  December,  1791,  and  they  remained 
with  defendant  till  the  action  brought  (except  such  as  he  had 


OCTOBER   TERM,  1796.  299 


Boynton  v.  Emerson. 


killed  or  sold).  The  action  commenced  in  1795.  Soon  after 
the  appraisal,  the  former  debtor  and  the  defendant  sent  word 
to  the  creditor,  and  requested  him  to  take  the  cattle,  which  he 
refused  :  this  was  repeated,  and  again  refused.  In  1791,  1792, 
1793,  or  1794  (it  is  not  recollected  which),  the  creditor  com- 
menced a  suit  upon  the  note,  against  the  debtor,  Wright,  in 
Massachusetts,  in  which,  after  advising  with  counsel,  he  became 
nonsuit.  Afterwards,  he  delivered  up  the  note  he  held  against 
Wright,  and  sent  a  messenger  to  Emerson,  the  defendant,  de- 
manding the  cattle,  but  refusing  to  i)ay  for  the  keeping.  The 
defendant  refused  to  deliver  them  unless  he  would  pay  for  the 
keeping. 

This  was  the  amount  of  the  evidence  offered  by  plaintiff  and 
defendant. 

It  was  contended  by  Blc/elow,  counsel  for  the  plaintiff,  that 
this  evidence  proved  the  property  in  him,  and  that  the  demand 
(which  was  on  May  23,  1795,  before  the  commencement  of  the 
suit)  and  the  refusal  was  evidence  of  conversion  in  defendant, 
sufficient  to  maintain  this  action. 

J.  Sinith,  counsel  for  the  defendant,  rested  the  defence  on 
two  points. 

1.  That  this  evidence  did  not  prove  property  in  plaintiff. 

2.  That  the  defendant  was  not  bound  to  deliver  up  the  cattle 
till  payment,  or  offer  of  payment,  for  the  keeping. 

I.  Property  in  the  plaintiff. 

It  was  admitted  that  the  appraisement  and  delivery  by  the 
debtor,  Wright,  was  a  complete  bar  to  any  action  on  the  note. 

But  it  was  contended  that  this  did  not,  at  all  events,  vest  the 
property  in  the  creditor. 

It  was  admitted  that  there  are  cases  where  consent  to  a 
contract  is  to  be  presumed,  and  that  this  was  one  of  the  cases ; 
but  this  presumptive  assent  is  destroyed  by  positive  proof  of 
dissent;  and  nothing  could  be  clearer  than  the  evidence  of 
dissent  in  the  present  case.  He  repeatedly  declared  they  were 
not  his  cattle  ;  he  would  have  nothing  to  do  with  them.  He 
would  not  accept  them.    He  commenced  a  suit  against  Wright, 


300  HILLSBOROUGH. 


Boynton  v.  Emerson. 


on  the  note ;  and,  from  1791  to  May,  1795,  was  uniform  in  his 
refusal  to  accept  the  property.  Now,  it  will  not  be  denied 
that  property  cannot  vest  against  the  will  of  a  person  ex- 
pressly manifested.  Before  property  can  change  its  owner, 
there  must  be  the  concurrence  of  two  wills,  —  that  of  the 
former  owner  to  part  with  it,  and  that  of  the  new  proprietor 
to  accept  of  it. 

Till  Boynton  had  notice  of  the  appraisal,  he  might  be  con- 
sidered as  the  owner ;  after  that,  he  could  not  be  in  any  sense. 
They  could  not  be  taxed  to  him.  Emerson  could  not  compel 
him  to  pay  for  sustenance  of  them. 

Perhaps  it  is  going  too  far  to  say  that  the  property  could  be 
considered  as  in  him  till  his  dissent.  It  would  be  more  proper 
to  say  that,  upon  his  consent,  the  property  should  be  consid- 
ered as  in  him,  and,  by  a  kind  of  postliminii,  to  have  been  all 
along  in  him. 

The  delivery  and  appraisal  of  the  cattle  was  no  more  than  a 
tender  by  the  debtor ;  and  the  property  of  the  thing  tendered 
no  more  vested  in  the  creditor  than  the  property  of  money 
tendered,  which  is  not  accepted,  vests  in  the  creditor.  From 
the  nature  of  the  contract,  the  custody  of  the  article  tendered 
is  sometimes  with  the  person  making  the  tender.  This  is  the 
case  with  money  ;  the  tender  is  not  complete  till  renewed  in 
court.  But,  where  a  specific  article  is  tendered,  the  [)erson 
offering  need  not  retain  the  possession  ;  for  he  is  under  no 
necessity  to  renew  the  offer.  In  the  latter  case,  the  creditor, 
having  had  one  offer  of  fulfilment,  shall  not  be  indulged  with 
another ;  as  this  would  subject  the  debtor  to  great  incon- 
venience, and,  sometimes,  total  loss  of  the  property.  He  is 
estopped  from  demanding  the  article  again  ;  not  because  the 
property  is  in  him  by  the  former  offer,  but  because  the  defend- 
ant shall  not  be  vexed,  after  having  done  every  thing  to  fulfil 
in  his  power. 

But,  upon  either  of  these  grounds,  —  that  the  property  did 
not  vest  at  all,  or  that  it  vested  sub  modo  till  dissent  expressed, 
—  the  instant  that  dissent  was  expressed,  tlie  plaintiff  ceased 
to  have  any  property  in  the  cattle  mentioned  in  his  declaration, 
and,  of  course,  cannot  maintain  this  action.     For,  if  he  has  not 


OCTOBER   TERM,  1796.  301 

Boynton  v.  Emerson. 

an  absolute  property,  he  has  none  at  all;  there  being  no  pre- 
tence of  any  qualified  property  in  this  case- 
But,  if  it  should  be  considered  that  the  property  did  abso- 
lutely vest  in  the  plaintiff  by  the  proceedings  of  his  debtor, 
yet  his  absolute  denial  of  property,  refusal  to  receive  it,  and 
refusal  to  pay  for  keeping,  is  complete  evidence  of  an  abandon- 
ment. 2  Blackst.  9.  The  owner  of  any  chattel  may  abandon 
it ;  in  which  case  he  shall  never  claim  it  again. 

According  to  the  foregoing  principles, —  that  the  property  was 
devested  from  Wright  and  never  vested  in  the  plaintiff,  or  be- 
came devested  upon  his  refusal  to  accept,  or  abandonment, — 
the  right  of  the  plaintiff  to  maintain  the  action  is  destroyed  ;  but 
it  may  be  added  that  the  defendant,  as  the  first  finder  of  prop- 
erty which  at  one  time  belonged  to  nobody,  acquired  a  title  by 
occupancy.    2  Blackst.  9,  402. 

II.  But  should  it  be  admitted  that  the  property  of  the  cattle 
in  question  was  in  the  plaintiff  on  May  23,  1795,  —  the  time  of 
the  demand  made,  —  yet  it  is  contended  that  he  cannot  main- 
tain this  action,  not  having  tendered  a  reasonable  sum  for  the 
keeping. 

It  is  not  pretended  that  any  of  the  cases  in  the  books  declare 
that  a  person,  circumstanced  like  the  defendant,  has  a  lien  on 
the  goods  in  his  custody,  but  it  is  apprehended  that  the  prin- 
ciples of  the  cases  will  apply. 

Here  the  defendant  was  under  a  moral  obligation  to  relieve 
and  sustain  the  cattle,  and  the  cattle  themselves  seem  to  be 
the  fund  out  of  which  he  is  to  be  paid.  His  obligation  to  re- 
lieve is  certainly  as  great,  and  it  is  for  the  honor  of  our  law 
and  of  humanity  to  say  that  it  is  as  legal,  as  that  on  an  inn- 
keeper to  receive  the  horse  of  his  guest. 

The  case,  in  2  Blackst.  Rep.  1117,  of  the  dog,  may  easily  be 
distinguished  from  the  present.  They  may  be  considered  as 
agreeing  in  this,  that  the  animals,  in  both  cases,  strayed  to  the 
keeper  ;  but  the  obligation  to  keep  a  dog,  —  an  animal  which  is 
hurtful  to  society,  —  and  animals  of  the  description  of  those 
in  the  plaintiff's  writ,  is  extremely  different.  2  Blackst.  298, 
n.  11. 


302  HILLSBOROUGH. 

Boynton  v.  Emerson. 

The  Court  instructed  the  jury  to  find  for  the  defendant, 
which  they  did,^ 

One  of  the  Court  only  was  with  the  defendant  on  the  second 
point. 

^  Boynton  v.  Emerson  is  cited  with  approval  in  the  well-known  case  of 
Weld  V.  Hadley,  1818,  1  N.  H.  295,  ;328.  That  case  goes  farther  than 
Boynton  v.  Emerson;  for  the  defendant  there  was  the  debtor  himself,  who 
had  successfully  pleaded  the  tender  in  a  suit  on  the  contract. 

Weld  V.  Hadley  has  been  disapproved  of  by  prominent  text-writers. 
2  Kent,  Com.  509;  2  Pars.  Cont.  5th  ed.  654,  n.  w;  2  Chit.  Cont.  11th  Am. 
ed.  1210,  1211. 

There  are  also  numerous  expressions  of  judicial  opinion  adverse  to 
Weld  V.  Hudiey ;  but  a  very  large  proportion  of  these  occur  in  suits  on 
the  contract,  where  the  question  of  title  to  the  property  tendered  was  not 
directly  in  issue.  For  dicta  in  cases  of  this  description,  see  Bkll,  J.,  in 
Miles  V.  Roberts,  185G,  34  N.  H.  245,  256;  Thompson,  J.,  and  Kent,  J., 
in  Coit  V.  Houston.  18o2,  3  Johns.  Cas.  243,  249,  258;  Slingerland  v. 
Morse,  1811,  8  Johns.  370,  374;  Savage,  C.  J.,  in  Lamb  v.  Lathrop, 
1834,  13  Wend.  95,  97;  McConnell  v.  Hall,  1820,  Brayt.  223,  227  ; 
Barney  v.  Bliss,  1824,  1  D.  Chip.  399,  406-409  (see  also  Hall,  J., 
in  Seward  v.  Hefin,  1848,  20  Vt.  144,  148);  Palmer  v.  Harper,  1^33, 
AV right  (Ohio),  383  (decided  under  statute);  Bradshaw  v.  Davis,  1854, 
12  Tex.  336,  353-355;  Hamhel  v.  Torcer,  1863,  14  Iowa,  530,  532; 
Peters,  J.,  in  Smith  v.  Loomis,  1828,  7  Conn.  110,  114-116;  Black- 
FOKD,  J.,  in  Mitchell  v.  Merrill,  1827,  2  Blackf.  (Ind.)87,  89;  Stevens,  J., 
in  Johnson  v.  Baird,  1833,  3  Blackf.  (Ind.)  182,  186,  187;  Dorman  v.  Elder, 
1834,  3  Blackf.  (Ind.)  490,  492;  Rogers,  J.,  in  Case  v.  Green,  1836, 
5  Watts,  262;  Coulter,  J.,  in  Zinn  v.  Rowley,  1846,  4  Penn.  St. 
169,  171  ;  Curtiss  v.  Greenbanks,  1852,  24  Vt.  536  (where  the  question 
related  to  the  validity  of  a  tender  of  money);  Bibb,  C.  J.,  in  Mitchell  v. 
Gregory,  1809,  1  Bibb,  449,  453. 

Leballister  v.  Nash,  1844,  24  Me.  316,  and  Des  Arts  v.  Leggett,  1858, 
16  N.  Y.  582,  are  both  cases  where  the  title  to  the  property  tendered  was 
directly  in  issue,  and  opinions  were  intimated  adverse  to  Weld  v.  Hadley ; 
but  in  neither  case  was  the  precise  point  in  Weld  v.  Hadley  before  the 
Court,  in  Leballister  v.  Nash  (trover  by  the  creditor  against  a  third  per- 
son), there  was  no  refusal  to  accept.  In  Des  Arts  v.  Leggett,  Strong,  J., 
took  the  ground  that  the  debtors  had  been,  at  all  times  after  the  tender, 
willing  that  the  creditors  should  have  the  benefit  and  control  of  the  prop- 
erty, and  had  carefully  avoided  any  thing  which  would  interfere  with  any 
use  of  the  property  by  the  creditors.  Under  this  view  of  the  facts,  it  was 
held  that  the  defendants,  who  were  third  persons,  could  not  question  the 
creditor's  title  to  the  property.     As  all  the   judges  are  stated  to  have 


OCTOBER   TERM,  1796.  303 

Boynton  v.  Emerson. 

concurred  in  the  opinion  delivered  by  Strong,  J.,  it  would  seem  that  the 
very  forcible  criticisms  upon  Weld  v.  J/adley,  in  the  opinion  of  Com- 
8TOCK,  J.,  pp.  592-594  (though  also  concurred  in  by  the  other  judges), 
must  be  regarded  as  dicta. 

In  Shelden  v.  Skinner,  1830,  4  Wend.  525,  the  debtor  was  held  liable 
in  trover  for  abandoning  the  property  (turning  the  hogs  into  the  street) 
after  the  tender.  But  see  the  contrary  dicta  of  Comstock,  J.,  in  Des  Arts 
V.  Leggett,  ubi  sup.  591,  592. 

The  view  held  by  most  of  the  opponents  of  Weld  v.  Hadley  seems  to  be 
that  the  tender  ipso  facto  vested  the  property  in  the  creditor;  but  it  seems 
to  have  been  thought  by  some  that  it  did  not  vest  until  the  debtor  had 
successfully  set  up  the  tender  as  a  defence  to  the  contract.  See  Scott,  J., 
in  McJilton  v.  Smizer,  1853,  18  Mo.  Ill,  116,  117.  And  it  has  sometimes 
been  held,  that  a  plea  of  tender  of  specific  articles  in  the  creditor's  absence 
should  aver  that  the  defendant  has  been  always,  and  yet  is,  ready  to 
deliver  the  articles.  See  Tiernan  v.  Napier,  1823,  Peck  (Tenn.),  212; 
Nixon's  Adm'rs  v.  Bullock,  1836,  9  Yerg.  414;  Miller  v.  McClain,  1837, 
10  Yerg.  245;  Walters  v.  iWAllister,  1818,  4  Hayw.  (Tenn.)  299.  (Contra, 
2  Kent,  Com.  508;  2  Pars.  Cont.  5th  ed.  653,  n.  v.)  In  Garrard  v.  Zacha- 
riah,  1828,  1  Stew.  (Ala.)  272,  a  plea  of  tender  and  refusal  was  held 
good,  without  an  averment  that  the  defendant  abandoned  the  articles, 
or  kept  them  ready  to  be  delivered  to  the  creditor  on  demand. 

The  report  of  Rix  v.  Strong,  1773,  1  Root,  55  (referred  to  in  Weld  v. 
Hadley,  329),  is  as  follows:  "  Action  of  trover  for  a  number  of  horses. 
Plea  :  not  guilty,  to  the  jury. 

"The  facts  were:  Rix  had  a  note  against  one  Bacon,  for  £24  lO.s.  pay- 
able, in  horses,  at  a  certain  time  and  place  in  Lebanon.  Bacon  tendered 
the  horses  at  time  and  place,  and  Rix  refused  them,  and  brought  an  action 
upon  the  note ;  to  which  Bacon  plead  the  tender  of  the  horses,  and  pre- 
vailed. Rix  then  looked  after  his  horses,  and  found  that  the  defendant 
had  taken  them  away.  He  went  and  demanded  them,  and  brought  this 
action. 

"  And  verdict  and  judgment  was  for  the  plaintiff  to  recover;  for,  as  the 
tender  was  legal,  the  property  of  the  horses  was  vested  in  the  plaintiff." 

It  may  perhaps  be  urged  that,  in  Boynton  v.  Emerson,  there  was  stronger 
evidence  of  the  creditor's  "  abandonment  "  of  the  property  than  in  Rix  v. 
Strong. 


SUPREME    JUDICIAL    COURT. 


ROCKINGHAM,   NOVEMBER  TERM,  1813. 


Stephen    Gilman    v.   Gilman   Leavitt,    J.   T.    Gilman, 
AND   B.  Conner. 

A.,  B.,  and  C.  were  joint  owners  of  a  vessel,  of  which  A.  was  master.     The  vessel 

carried  a  cargo  wliich  was  jointly  owned  by  B.,  C,  and  D. 
Held,  that  A.  could  maintain  assumpsit  against  B.,  C,  and  D.,  to  recover  one-third 

of  the  freight. 

Assumpsit,  on  account  annexed. 

First  item  :  for  collecting  debt  due  defendants  at  St.  Vin- 
cent;  commissions,  —  two  and  a  half  per  cent, —  '"1116.97. 

Second:  to  freight  of  sixty-four  puncheons  of  rum  from  St. 
Vincent  to  Portsmouth;  the  rum  was  received  for  the  debt; 
brought  in  the  [vessel]  O.  P.,  whereof  plaintiff  master  and 
one-third  owner;  at  $1  per  puncheon, — $448. 

There  was  a  second  count  for  the  freight,  and  a  third  for 
money  paid,  &c. 

Plea  :  the  general  issue. 

At  the  trial,  it  was  proved  that  plaintiff  collected  the  debt 
as  mentioned  in  the  account,  and  that  two  and  a  half  per  cent 
was  the  usual  commission  for  this  sort  of  collection  ;  that, 
pursuant  to  defendants'  orders,  it  was  received  in  rum,  and 
the  rum  was  brought  to  Portsmouth  in  the  O.  P.  ;  of  which 
plaintiff  and  Gilman  Leavitt  and  J.  T.  Gilman  were  owners, 

one-third  each, —  and  plaintiff  was  master;  Gilman  Leavitt 

was  ship's  husband,  and  received  the  rum.     These  facts  were 


NOVEMBER   TERM,  1813.  305 

Gilraan  v.  Leavitt. 

proved  by  the  confession  or  declaration  of  G.  Leavitt.    Freight 
is  from  $6  to  $S  per  puncheon. 

The  jury  found  a  verdict  for  plaintiff  for  both  sums  ;  subject 
to  the  opinion  of  the  Court,  whether,  on  these  facts,  the  plain- 
tiff is  entitled  to  recover  for  the  second  item.  If  not,  the 
verdict  is  to  be  entered  for  the  $116.97. 

Smith,  C.  J.  The  objection  is  that  plaintiff,  neither  as 
one-third  owner,  nor  master,  can  maintain  this  action  for 
the  freight ;  two  of  the  defendants  being  owners  of  two- 
thirds  of  the  rum,  and  two-thirds  of  the  vfessel  in  which  it  was 
brought. 

It  seems  clear  that  plaintiff  cannot  recover  the  whole 
freight.  This  would  be  compelling  the  owners  of  two-thirds 
of  the  vessel  to  pay  to  the  owner  of  one-third  the  whole 
freight.  If  entitled  at  all,  it  is  only  to  one-third  the  freight, 
in  respect  of  his  share  in  the  vessel ;  and  to  this  he  seems 
equitably  entitled. 

1.  Objection.  All  the  owners  must  join  in  an  action  for 
freight,  even  if  we  suppose  Conner  the  sole  owner  of  the 
rum,  or  that  the  three  defendants  were  in  no  way  connected 
with  the  plaintiff  or  the  vessel. 

The  general  rule  is  so.  When  a  contract  is  made  with 
several,  all  must  join  in  the  action.  1  Chitty,  5,  25,  26  ;  Abbott 
on  Shipping  (98,  99).  The  non-joinder  may  be  taken  advan- 
tage of  at  the  trial,  and  is  ground  of  nonsuit.  Indeed,  it 
appears  on  this  declaration.  It  is  not  pretended,  in  this  case, 
on  the  part  of  the  plaintiff,  that  the  defendants  made  any 
express  contract  with  him,  in  which  case  he  might  sue  alone. 
1  Chitty,  6,  n.  (z).  The  contract  proved  in  this  case  is  one 
which  arises  by  implication  of  law. 

But  there  are  several  exceptions  to  the  general  rule  that  all 
the  parties  to  a  joint  contract  must  join. 

One  is,  that,  where  two  out  of  three  have  been  paid  or 
have  received  their  shares,  tlie  third  may,  in  respect  of  such 
severance,  sue  alone  for  his  proportion.  1  Chitty,  7  ;  Esp. 
117  ;    Garret  v.   Taylor,  Abbott  (98,  99).     Now  the  present 

20 


306  ROCKINGHAM. 


Oilman  v.  Leavitt. 


case  is  in  substance  the  same.  G.  Leavitt  and  J.  T.  Gilman 
owned  two-thirds  of  the  merchandise,  —  the  rum  ;  as  owners  of 
two-thirds  of  the  vessel,  their  two-thirds  comes  freight  free, 
which  is  the  same  thing  as  if  A.  and  B.  had  been  the  owners 
of  the  rum  with  Conner,  and  had  paid  each  of  them  their  one- 
third  of  the  freight  of  the  rum.  They  are  satisfied  ;  they 
cannot  sue  ;  they  have  no  demand  for  the  freight  of  the  sixty- 
four  puncheons  of  rum.  Why  should  they  join  in  the  action 
for  this  freight,  as  they  have  nothing  to  receive?  Stephen 
Gilman  has  something  to  receive.  All  that  is  due  is  his. 
This  necessarily  works  a  severance,  and  takes  the  case  out  of 
the  general  rule. 

This  exception,  as  it  respects  torts,  was  recognized  and  es- 
tablished in  Addison  v.  Overend,  6  T.  R.  766  ;  and  Sedgworth 
y.  Overend,  7  T.  R.  279.  There,  one  of  two  joint  owners 
of  the  vessel  had  been  paid  his  share  of  the  damage  done 
to  the  vessel ;  and  it  was  held  he  could  not,  and  conse- 
quently need  not,  join  in  the  action  to  recover  the  residue  of 
the  damages  sustained.  That  action  was  properly  brought 
in  the  name  of  the  party  entitled  to  whatever  might  be  recov- 
ered. 

In  Baker  v.  Jewell,  6  Mass.  460,  Parsons,  C.  J.,  applies  this 
doctrine  to  actions  founded  on  contract.  Where  one  is  an- 
swerable to  two  or  more,  jointly,  and  he  adjusts,  the  matter 
with  either  of  them,  so  that  he  has  no  longer  an  interest  in 
the  dispute,  this  is  a  severance  of  the  cause  of  action,  (a) 
See  also  Austin  v.  Welsh,  2  Mass.  401,  where  it  was  held  that, 
where  a  factor  (who  is  liable  to  two)  pays  one  of  the  partners 
his  share,  so  that  he  ceases  to  have  any  interest  in  the  pp. 
[partnership?],  this  is  an  implied  engagement  to  account  with 
each  partner  severally. 

Here  I  consider  the  situation  of  these  three  owners  of  the 
vessel  as  placing  them  on  the  same  ground.  The  defendants 
are  answerable  to  one,  because  the  others  are  satisfied,  have 

(a)  6  Mass.  436.  One  part-owner  six-sixteenths  sued  the  charterer  for 
six-sixteenths  freight;  the  other  owners  of  the  ten-sixteenths  freight  had 
been  settled  with:  no  objection  to  this  action. 


NOVEMBER   TERM,   1813.  307 

Gilman  v.  Leavitt. 

no  claim  on  this  one-third  of  the  freight.  This  is  all  due  the 
plaintiff;  and,  if  he  cannot  recover  it  in  this  form  of  action, 
he  is  without  remedy. 

This  objection,  therefore,  cannot  prevail,  under  the  circum- 
stances of  this  cause. 

I  might  have  observed  that  part-owners  of  a  ship  are  not,  to 
every  purpose,  partners.  They  are  qud  partners.  One  can- 
not sell  ;  employ.  One  can  bind  all  for  necessaries,  supplies  for 
the  ship  ;  so  can  the  master.     Abbott  (92,  94,  97). 

2.  But  a  second  objection  is,  that  this  action  is  not  main- 
tainable, because  two  of  the  defendants  are  jointly  entitled, 
with  the  plaintiff,  to  the  freight  sued  for. 

The  case  in  2  B.  &  P.  120,  shows  that  the  same  person 
cannot  be  plaintiff  and  defendant.  Brander  made  note  to 
Newman,  Chatteris,  and  himself.  They  indorsed  it  to  two 
Mainwarings  and  the  same  Chatteris.  These  last  sued  New- 
man as  indorser.  It  was  held  that  the  action  was  not  main- 
tainable. Newman  was  not  liable  alone,  and  Chatteris  could 
not  both  sue  and  be  sued  on  the  same  cause  of  action.  So, 
here,  Stephen  Gilman,  Gilman  Leavitt,  and  J.  T.  Gilman  can- 
not sue  Gilman  Leavitt,  J.  T.  Gilman,  and  B.  Conner.  But 
the  answer  to  this  objection  is,  that  Stephen  Gilman  can, 
under  the  circumstances  of  this  case,  sue  alone.  Why  may 
he  not  sue  Gilman  Leavitt  as  well  as  any  other,  e.  g.  Conner? 
Gilman  Leavitt  is  not  jointly  entitled  with  him  to  any  part  of 
this  freight.  It  is  all  due  S.  G.'  No  action  at  any  time 
lay  for  the  two-thirds,  and  the  action  for  the  one-third  can 
oidy  be  brought  by  S.  G.  It  is  only  for  Conner's  rum,  i,  e. 
one-third  of  the  sixty-four  puncheons,  an  action  lies ;  and  it 
does  not  affect  plaintiff's  right  that  two  of  these  defendants, 
who  are  also  joint  owners  of  the  vessel  with  him,  are,  in  law, 
answerable  jointly  with  Conner.  They  are  sureties  for  Conner. 
They  are  sued,  not  as  owners  of  the  vessel,  but  as  jointly 
liable  with  the  owner  of  the  rum.  As  there  has  been,  under 
the  circumstances  of  this  case,  a  severance  in  the  ownership 
of  the  vessel,  it  is  as  though  plaintiff  owned  the  whole.     As 

1  The  manuscript  reads  "  G.  L- ;  "  but  this  seems  a  slip  of  the  pen. 


308  ROCKINGHAM. 


Gilman  v.  Leavitt. 


the  joint  ownership  does  not  require  joinder  with  plaintiff,  it 
shall  not  prevent  joinder  with  defendant. 

3.  Objection.  Hardship  on  G.  Leavitt  and  J.  T.  Gilman, 
—  not  that  they  are  jointly  liable  with  Conner;  they  are  so 
by  law  and  in  equity  ;  but  that  Stephen  Gilman  should 
receive  the  whole  freight  from  Conner. 

Answer.  But  they  have  received  the  whole  of  the  other 
two-thirds.     Why  should  not  Stephen  Gilman  of  this? 

But,  it  may  be  said,  possibly,  on  settlement  of  the  voyage, 
nothing  found  due  to  Stephen  Gilman,  even  if  he  recovers 
none  of  this. 

Answer.  This  is  not  in  evidence,  and  it  is  just  as  probable 
that  lie  may  be  entitled  to  this  and  more.  This  is  only  putting 
him  on  a  par  with  them.     It  is  giving  him  no  preference. 

4.  Objection.  No  action  lies,  but  for  one-third  of  the  net 
profits  of  the  voyage,  plaintiff  must  sue  in  account,  (a) 

Answer.  In  this  case  the  owners  have  severed,  as  it  relates 
to  this  part  of  their  dealings,  and  must  be  so  considered 
throughout.  This  action  is  only  for  what  grows  out  of  the 
severance,  —  not  for  proportion  of  profits. 

Defendants  are  sued  as  Conner  is,  not  as  partners  but 
strangers,  and  for  the  freight  of  Conner's  rum. 

Account  would  not  lie  for  this.  No  such  action  against 
Conner. 

If  this  action  does  not  lie  for  this  freight,  no  action  lies ; 
and,  as  this  freight  belongs  to  Stephen  Gilman,  he  must  have 
some  action.  Suppose  Gilman  Leavitt  and  J,  T.  Gilman  in- 
solvent, and  Conner  solvent  ;  then  no  action  lies  against  Con- 
ner, and  plaintiff  can  only  look  to  two  insolvent  persons,  each 
of  whom  has  received  his  share  of  the  freight  for  the  sixty- 
four  puncheons  of  rum.     Plaintiff  only  sufferer. 

6.  Objection.  This  is  saying  one  owner  may  sue  another 
for  freight  earned  by  their  joint  ship. 

Answer.     No  such   proposition  is  maintained.     If   all  de- 

(a)  One  partner  cannot  sue  his  copartner,  in  indebitatus  assumpsit,  for 
his  proportion  of  the  profits,  unless  for  balance  on  settlement.  1  (Shitty 
(98),  and  cases  cited. 


NOVEMBER   TERM,  1813.  309 


Cutts  V.  Frost. 


fendants  owners,  account  would  give  adequate  relief  to 
plaintiff.  But,  as  account  does  not  lie,  and  as  defendants  are 
strangers,  and  plaintiff  is  to  be  considered  as  sole  owner  quoad 
hoc,  the  doctrine  does  not  apply.  Defendants  are  not  sued  as 
owners  of  the  vessel,  but  as  owners  of  the  merchandise  car- 
ried. Qud  owners  of  vessel,  they  have  been  paid.  Qud 
owners  of  the  rum,  they  still  owe  with  Conner. 

It  is  said,  for  plaintiff,  that  he  may  sue  for  freight  as  master, 
if  he  cannot  as  owner.  1  Chitty,  5  ;  Declaration,  2  Chitty,  21; 
Abbott  (246,  247,  n.,  215,  277,  294,  295)  ;  1  East,  20 ;  4  Esp. 
22 ;  4  Mass.  91.  Master  has  lien  ;  er^o,  may  sue.  If  he  can- 
not sue  his  owners  for  freight,  may  sue  Conner,  a  stranger ; 
especially  where  owners,  as  such,  cannot.  Clearly  Stephen 
Gilnian,  Gilman  Leavitt,  and  J.  T.  Oilman  cannot,  because  two 
last  may  be  and  must  be  defendants. 

It  would  seem  Stephen  Gilman  might  sue  Gilman  Leavitt  as 
ship's  husband  of  the  Rockingham  ;  [?]   ergo,  may  all. 

[Judgment  for  plaintiff,  for  1314.21.] 


Thomas  D.  Cutts  v.  George  P.  Frost  et  al. 

At  the  conclusion  of  a  charter-party,  it  was  stated  tliat  the  parties  have  hereunto 
set  their  hands  and  seals,  and  the  word  "seal"  was  written  aftei  each  signa- 
ture ;  but  no  seal  was  affixed.  Held,  that  the  cliarter-party  was  not  a  sealed 
instrument,  and  that  an  action  of  covenant  could  not  be  maintained  on  it. 

A  vessel  was  chartered  for  a  voyage  from  V.  to  M.,  and  back  again  to  P.,  the 
charterer  to  pay  freiglit,  at  so  much  per  month,  thirty  days  after  the  vessel's 
return  to  P.    The  vessel  was  lost,  with  all  the  cargo,  on  the  homeward  voyage. 

Held,  that  the  charterer  was  not  liable,  even  for  the  outward  freight. 

[Covenant,  on  a  charter-party  of  affreightment.  At 
November  Term,  1818,  the  following  case  was  stated  for  the 
opinion  of  the  Court :]  — 

In  an  action,  in  a  plea  of  covenant  broken  on  a  charter- 
party  of  affreightment,  between  said  Cutts,  of  the  one  part, 
and  said  Frost  and  one  Richard  Cutts,  Jr.,  of  the  other  part, 
dated  the  second  day  of  September,  a.d.  1810. 


310  ROCKINGHAM. 

Cutts  V.  Frost. 

On  the  said  second  day  of  September,  1810,  the  said  George 
P.  Frost  signed  and  sealed  the  charter-party  hereunto  an- 
nexed, the  sealing  being  writing  the  word  seal  in  the  manner 
which  by  said  charter-party  appears,  the  said  Frost  declaring 
it  to  be  his  seal. 

On  the  said  second  day  of  September,  1810,  the  said  Cutts 
let  to  freight  one-third  of  the  schooner  George,  of  the  burthen 
of  seventy-four  tons  or  thereabouts,  to  said  Frost,  for  a  voyage 
(by  God's  assistance),  to  be  made  by  the  said  Frost  to  Mar- 
tinico,  or  any  other  port  in  the  West  Indies,  and  back  again 
to  this  port  of  Portsmouth.  Said  Frost,  and  Puchard  Cutts, 
Jr.,  to  pay,  for  the  freight  or  hire  of  said  schooner  and  appur- 
tenances, the  sum  of  -f2.33i  per  ton  per  month,  and  so  in 
proportion  for  a  less  time,  as  the  said  schooner  shall  be  contin- 
ued in  the  aforesaid  service,  in  thirty  days  after  her  return  to 
Portsmouth,  as  by  said  charter-party  is  stipulated. 

Said  schooner  sailed  from  Portsmouth  to  Martinico,  and 
there  sold  and  delivered  her  cargo,  and,  from  the  proceeds, 
bought  and  took  in  a  cargo  of  molasses,  and  on  the  twentieth 
day  of  November,  1810,  sailed  from  Martinico  for  Portsmouth, 
and,  on  the  twenty-eighth  day  of  December,  1810,  on  the 
voyage  from  Martinico  to  Portsmouth,  in  said  charter-party 
mentioned,  said  schooner  struck  on  a  ledge  of  rocks  six  or 
seven  miles  southward  and  westward  of  Boon  Island,  and  was 
then  sunk  and  lost,  together  with  her  cargo. 

The  parties  agree,  that,  if  the  Court  should  be  of  opinion 
that  the  action  of  covenant  broken  cannot  be  supported  on 
the  annexed  charter-party ;  or  that  the  plaintiff,  on  the  facts 
stated,  is  not  entitled  to  recover  any  part  of  the  stipulated 
freight  against  the  said  Frost ;  then  the  said  Cutts  is  to  be 
nonsuited.  But,  if  the  Court  should  be  of  opinion  that  the 
plaintiff  should  recover  any  part  of  the  freight,  then  the 
defendant  is  to  be  defaulted,  and  judgment  to  be  rendered 
a<'-ainst  him  for  such  ])art  and  costs. 

Jos.  Bartlett,  attorney  to  plaintiff. 

Edmd.  Toppan,  defendant's  attorney. 


NOVEMBER   TERM,  1813.  311 


Cutts  V.  Frost. 


[In  the  pleadings,  the  charter-party  is  set  out  as  follows  :  ]  — 

"  This  charter-party  of  affreightment,  indented,  made,  and  fully  con- 
cluded upon  this  second  day  of  September,  Anno  Domini  one  thousand 
eight  hundred  and  ten,  between  Thomas  D.  Cutts,  of  Kittery,  in  the 
County  of  York,  and  Commonwealth  of  Massacliusetts,  merchant, 
owner  of  the  good  schooner  George,  of  the  burthen  of  seventy-four 
tons,  or  thereabouts,  now  lying  in  the  harbour  of  Portsmouth,  whereof 
George  P.  Frost  is  at  preseiit  master,  on  the  one  part,  and  the  said 
George  P.  Frost  of  Newcastle,  in  the  County  of  Rockingham,  and  State 
of  New  Hampshire,  mariner,  and  Richard  Cutts,  Jr.,  merchant,  of 
Kittery,  in  the  District  of  Maine,  on  the  other  part,  witnesseth,  that 
the  said  Thomas  D.  Cutts,  for  the  consideration  hereafter  mentioned, 
hath  letten  to  freight  the  aforesaid  schooner  George,  with  all  appur- 
tenances to  her  belonging,  for  a  voyage  (by  God's  assistance)  to  be 
made  by  the  said  George  Frost  to  Martinic,  or  any  other  port  in  the 
West  Indies,  that  is  to  say,  one-third  said  schooner  to  said  Frost,  and 
one-third  to  said  Cutts,  and  back  again  to  this  port  of  Portsmouth, 
where  slie  is  to  be  discharged  (the  danger  of  the  seas  excepted)  ;  and 
the  said  Thomas  D.  Cutts  doth,  by  these  presents,  covenant  and  agree 
with  the  said  George  Frost  and  Richard  Cutts,  Jr.,  in  manner  following, 
that  is  to  say,  that  the  said  schooner,  in  and  during  the  voyage  afore- 
said, shall  be  tight,  staunch,  and  strong,  and  sufficiently  tackled  and 
apparelled  with  all  things  necessary  for  such  a  vessel  and  voyage  ;  and 
that  it  shall  and  may  be  lawful  for  the  said  George  Frost  and  Richard 
Cutts,  Jr.,  their  agents  or  factors,  as  well  at  Portsmouth  as  at  Martinic 
or  West  Indies,  to  load  and  put  on  board  the  said  schooner  a  full 
loading  of  such  goods  and  merchandise  as  they  shall  think  proper, 
contraband  goods  excepted.  In  consideration  whereof,  the  said  George 
Frost  and  Richard  Cutts,  Jr.,  do,  by  these  presents,  agree  with  the 
said  Thomas  D.  Cutts,  well  and  truly  to  pay  or  cause  to  be  paid  unto 
him,  in  full,  for  the  freight  or  hire  of  said  schooner  and  appurtenances, 
the  sura  of  fourteen  shillings  per  ton  per  month,  and  so  in  propor- 
tion for  a  less  time,  as  the  said  schooner  shall  be  continued  in  the 
aforesaid  service,  in  thirty  days  after  her  return  to  Portsmouth,  and 
the  said  Frost  and  Cutts  do  agree  to  pay  the  charge  of  victualling 
and  manning  two-thirds  said  schooner,  and  all  port  charges  and  pilotage 
during  said  voyage,  and  to  deliver  said  schooner,  on  her  return  to 
Portsmouth,  to  the  owner  aforesaid,  or  his  order.  And  to  the  true 
and  faithful  performance  of  all  and  singular  the  covenants,  payments, 
and  agreements  aforementioned,  each    of  the    parties    aforesaid   binds 


312  ROCKINGHAM. 


Cutts  V.  Frost. 


and  obliges  himself,  his  executors  and  administrators,  in  the  penal  sura 
of  $500,  firmly  by  these  presents.  In  witness  whereof,  the  parties 
aforesaid  have  hereunto  interchangeably  set  their  hands  and  seals  the 
day  and  year  aforewritten. 

"  Signed,  sealed,  and  deliv-  Thos.  D.  Cutts.       [seal.] 

ered  in  presence  of  Gko.  P.   Frost.         [seal.] 

"Augustus  Cutts,  Richd.  Cutts,  Jr.     [seal.] 

"  Elizabeth  D.  Wilcox." 

[It  is  believed  that  the  case  was  argued  by  Bartlett ;  and 
by  Freeman^  who  cited  Haveloek  v.  G-eddes,  10  East,  555.] 

Smith,  C.  J.     Two  questions  are  made. 

1st.  Whether  an  action  of  covenant  can  be  maintained  on 
this  instrument.  And,  2d,  if  it  can,  whether  the  facts  war- 
rant a  recovery  for  any  portion  of  the  freight  or*  hire  ;  and,  if 
so,  for  how  much. 

1.  If  this  be  not  a  sealed  instrument,  covenant  cannot  be 
maintained  on  it. 

[After  discussing  the  legal  requisites  of  a  seal,  and  holding 
that  writing  the  word  seal  with  a  pen  does  not  constitute  a 
seal,  the  opinion  proceeds  as  follows:]  In  this  case,  even  if 
defendant  had  signed  a  written  agreement,  declaring  that  this 
instrument  was  to  be  considered  as  a  deed,  and  the  scroll 
(seal)  as  wax,  and  that  he  would  not  object  to  it  as  a  deed 
on  this  account,  I  do  not  know  that  we  could  so  consider  it. 
He  might,  perhaps,  admit  that  there  was  once  a  seal,  which 
was  broken  off,  and  under  such  circumstances  as  to  leave  the 
instrument  a  deed.  Here  the  defendant  did  not  go  that 
length.  He  declared  tliis  to  be  his  seal.  But  it  is  not  a 
seal.  Suppose  he  had  declared  this  writing  a  record.  He 
can  no  more  make  it  a  deed  than  he  can  make  it  a  record 
by  any  declarations  of  his.  If  it  has  the  requisite  formalities, 
it  is  a  deed.  Otherwise,  it  is  not.  To  consider  this  writ- 
ing as  a  deed  woidd  be  at  once  to  abolish  the  distinction 
between  writings  sealed  and  writings  not  sealed.  The  seal 
is  a  matter  of  substance  in  law ;  it  changes  the  nature  of 
evidence. 

2.  It  is  not  absolutely  necessary  to  decide  the  second  ques- 


NOVEMBER   TERM,   1813.  313 


Cutts  V.  Frost. 


tion,  whether  the  facts  agreed  are  sufficient  to  warrant  a 
recovery  of  any  thing  for  freight  or  hire.  But,  as  the  Court 
have  formed  an  opinion,  it  may  save  expense  to  the  parties  if 
it  is  now  intimated.  All  the  facts  necessary  in  the  case  are 
stated.  On  this  charter-party,  the  defendant  is  doubtless  lia- 
ble for  one-third  of  the  charges  of  victualling,  manning,  the 
port  charges,  and  pilotage ;  but,  with  respect  to  the  freight  or 
hire  of  the  vessel,  the  objection  is,  that  his  covenant  is  to  pay 
freight,  and  that  no  freight  has  been  earned.  It  is  a  condition 
precedent  that  the  vessel  perform  the  voyage.  She  was  let  to 
defendant  to  carry  his  merchandise  on  this  voyage.  Defend- 
ant is  to  pay,  at  the  stipulated  rate,  thirty  days  after  the 
voyage  performed. 

The  general  principle  is  (and  it  applies  as  well  to  the  char- 
terer as  to  the  merchant  who  puts  his  goods  on  board  a  gen- 
eral ship),  that  the  contract  is  in  its  nature  entire,  and  unless 
it  be  completely  performed  by  the  vessel's  arrival  at  the  port 
of  discharge,  or  the  delivery  of  the  goods  at  the  place  of  desti- 
nation, the  charterer  or  merchant  will,  in  general,  derive  no 
benefit  from  the  time  and  labor  expended  in  a  partial  perform- 
ance, and,  consequently,  be  liable  to  no  payment  whatever, 
although  the  vessel  may  have  been  hired  by  the  month.  The 
contract  is  to  pay,  if  the  voyage  be  performed,  so  much  per 
month  for  the  time  employed  in  the  voyage.  The  vessel  is  at 
the  risk  of  the  owner.  If  lost  on  the  voyage,  the  charterer 
has,  ordinarily,  no  remedy  for  the  loss  he  sustains  thereb}'. 
The  owner  does  not  undertake,  at  all  events,  that  his  ship 
shall  perform  the  voyage.  But  he  agrees  that,  if  she  does 
not,  he  is  entitled  to  nothing  for  the  hire.  In  the  action  for 
the  freight  or  hire,  therefore,  he  must  show  the  voyage  per- 
formed. This  is  no  hardship  on  the  owner ;  the  price  is  regu- 
lated according  to  this  understanding  of  the  rights  and 
obligations  of  the  respective  parties. 

In  its  nature,  the  contract  to  furnish  a  ship  for  a  voyage,  or 
to  carry  merchandise  to  a  foreign  port,  must  be  entire.  A 
contract  to  carry  goods  half  way  from  P.  to  M.  would  be 
absurd. 

But  it  often  happens  (Abbott  on  Shipping,  315)  that  a  ship 


314  ROCKINGHAM. 


Cutts  V.  Frost. 


is  hired  by  a  charter-party  to  sail  from  one  port  to  another, 
and  from  thence  back  to  the  first,  at  a  certain  sum,  to  be  paid 
for  every  month  of  the  duration  of  the  employment:  that  is 
precisely  this  case. 

If  this  is  to  be  considered  as  one  entire  voyage,  then  noth- 
ing is  due  for  freight.  But  if  the  outward  and  homeward 
voyages  are  distinct,  freight  will  be  due  for  the  proportion  of 
the  time  employed  in  the  outward  voyage. 

This  question  must  be  settled  by  giving  a  reasonable  con- 
struction to  the  terms  of  the  charter-party. 

Tlie  case  of  Mackrel  v.  Simond  ^  Hankey,  Abbott  (316),  [2 
Chit.  Rep.  666],  was  held  to  be  of  this  latter  kind,  two  dis- 
tinct voyages.  From  London  to  Plymouth  and  the  Island  of 
Grenada  was  one  voyage ;  from  Grenada  to  London  was 
another.  The  first  was  performed,  and  freight  or  hire  was 
allowed  for  the  time  employed  in  that ;  but  nothing  for  the 
partial  performance  of  the  voyage  from  Grenada  to  London, 
because  that  was  not  completed.  In  that  charter-party,  the 
outward  and  homeward  voyages  were  mentioned  as  distinct, 
and  there  were  circumstances  in  the  case  from  which  the 
Court  inferred  that  the  parties  contemplated  two  distinct  voy- 
ages. Suppose  the  charterer  hire  the  vessel,  and  send  her,  or 
employ  her  in  freighting.  Here  he  has  the  benefit  of  the  out- 
ward voyage,  and  can  afford  to  pay  the  hire  of  the  vessel  for 
that. 

In  the  present  case,  the  parties  seem  to  have  contemplated  a 
prosperous  voyage  out  and  home.  There  is  nothing  which 
shows  that  two  distinct  voyages  were  contemplated.  It  is 
spoken  of  as  a  voyage  ;  nothing  is  said  of  an  outward  and 
homeward  voyage.  The  whole  freight  is  to  be  paid  in  thirty 
days  after  the  ship's  return  to  Portsmouth.  There  is  no  dif- 
ference in  the  rate  of  hire  for  the  outward  and  return  voyage. 
The  nature  of  the  business  in  which  this  vessel  was  employed 
is  such,  as  appears  from  the  statement,  as  to  make  it  absurd 
to  suppose  the  charterer  could  think  of  two  voyages.  The 
round  voyage  must  be  performed  before  he  could  derive  any 
benefit.  His  outward  cargo  was  invested  in  molasses.  If  the 
molasses  were  lost  on  the  return,  what  did  he  gain  by  the 


NOVEMBER  TERM,  1813.  816 

Cutts  V.  Frost. 

delivery  of  the  lumber,  or  outward  cargo,  at  Martinique  ?  It  is 
not  our  business  to  make  a  contract  for  these  parties.  We  are 
only  called  on  to  explain  or  construe  the  one  they  have  made. 
But,  if  we  had  the  power  to  make  a  contract  for  them,  I  see  no 
ground  for  making  a  different  one  from  that  which  they  have 
made  for  themselves. 

I  consider  the  case  of  Byrne  ^  others  v.  Pattinson,  Abbott 
(319),  [K.  B.  Trin.  Term,  37  Geo.  III.],  as  like  the  present. 
The  voyage  was  from  Liverpool  to  the  Island  of  Madeira,  and 
from  thence  to  the  Island  of  Barbadoes,  and  from  thence  back 
to  Liverpool,  Greenock,  or  Bristol.  This  was  mentioned  in 
the  charter-party  as  a  voyage ;  the  freighter  to  pay  so  much 
per  month  for  six  months,  certain,  and  to  continue  till  the  ship 
was  discharged  at  Liverpool,  &c.,  with  two-thirds  of  pilotage 
and  port  charges,  &c. ;  one  month's  freight  to  be  advanced, 
and  some  cash  for  disbursements,  and  the  remainder,  on  the 
discharge  of  the  vessel,  by  bills  at  three  months.  On  the 
voyage  from  Madeira  to  Barbadoes,  the  ship  was  captured,  and 
it  was  holden  that  the  owner  had  no  claim  for  freight.  It  be- 
came due  at  Liverpool,  and  not  before.  This  is  not  so  strong 
a  case  for  an  entire  voyage  as  the  present. 

In  Smith  v.  Wilson^  8  East,  437,  the  same  doctrine  was  laid 
down  ;  and  the  Court  considered  the  terms  of  the  contract, 
that  the  freight  was  to  be  paid  on  the  arrival  of  the  ship  at 
her  destined  port  in  Great  Britain,  as  material  to  show  that  it 
was  all  one  voyage. 

Barker  v.  Cheviot^  2  Johns.  352  (Abbott,  322,  w.),  I  con- 
sider also  as  in  point.  There,  indeed,  the  sum  to  be  paid  for 
freight  was  a  gross  sum,  but  that  makes  no  difference  in  its 
bearing  on  the  point  now  under  consideration.  They  calcu- 
lated on  the  probable  time  of  the  voyage :  if  longer,  it  was  the 
gairi  of  the  charterer ;  if  shorter,  the  gain  of  the  owner.  The 
action  was  assumpsit  on  the  marine  law ;  all  parties  agreed 
that  no  action  could  be  maintained  on  the  charter-party.  In 
that  case  the  outward  cargo  was  delivered. 

Coffin  et  al.  v.  Stover^  5  Mass.  252,  I  am  not  able  to  distin- 
guish from  the  present.  The  voyage  was  from  Biddeford  to 
Surinam  and  a  market,  and  back  to  Biddeford,  at  so  much  per 


316  ROCKINGHAM. 


Cutts  V.  Frost. 


month.  On  her  homeward  passage,  she  was  wrecked  on  Cape 
Cod,  part  of  her  cargo  lost,  and  the  remainder  damaged.  The 
Chief  Justice  said,  if  the  employment  of  the  vessel,  as  men- 
tioned in  the  charter,  could  be  considered  as  two  distinct  vo)'- 
ages,  the  defendant  might  be  liable  for  the  freight  out;  but  he 
held  that  the  charter-party  would  not  admit  of  that  construc- 
tion ;  it  did  not  mention  an  outward,  as  distinct  from  a  home- 
ward, voyage,  but  speaks  of  a  voyage  commencing  on  the 
vessel's  sailing  from  Biddeford,  and  completed  on  her  return 
to  the  United  States ;  the  price  to  be  paid  on  the  completion 
of  the  voyage.  It  was  extremely  clear  that  nothing  could  be 
recovered  on  the  charter-party.  But,  in  respect  of  the  goods 
saved,  it  was  held  that,  by  the  marine  law,  there  being  noth- 
ing in  the  charter-party  to  forbid  it,  the  merchant  was  liable 
to  pay  freight  for  his  goods,  deducting  the  expenses  incurred 
in  transporting  them  to  the  port  of  delivery.  That  question 
does  not  arise  in  this  case  ;  for,  unfortunately,  nothing  was 
saved.     But  no  action  lies  on  the  charter-party. 

Judgment.      [Plaintiff  nonsuit. .?]  ^ 

1  "...  If  the  cases  in  -which  the  courts  have  been  called  upon  to 
interpret  charter-parties,  where  the  performance  of  the  entire  contract 
has  been  prevented  by  a  fortuitous  event,  are  critically  examined,  it  will 
be  found  that  they  have  turned  on  distinctions  so  minute  and  subtle  that, 
as  is  remarked  in  the  case  of  Towle  v.  Ketlell,  one  decision  can  hardly  be 
relied  on,  as  authority  for  another,  unless  there  is  between  them  a  perfect 
identity."     Ware,  J.,  in  The  Erie,  1859,  3  Ware,  225,  233. 

For  cases  where  it  has  been  held  that  there  was  an  indivisible  contract 
of  affreightment  for  an  entire  round  voyage  out  and  back,  see  Donahoe 
V.  Kettell,  1858,  1  Cliff.  135;  Toiiile\.  Kettell,  1849,  5  Cush.  18;  Blanchard 
V.  Bucknam,  1824,  3  Greenl.  1  ;  Penoyer  v.  Hallett,  1818,  15  Johns. 
332;  Hamilton  v.  Warjield,  1830,  2  Gill  &  J.  482;  Bigelow,  C.  J.,  in 
Benner  v.  Equitable  Safety  Ins.  Co.,  1863,  6  Allen,  222,  225.  See  also 
Gibbon  v.  Mendez,  1818,  2  B.  &  A.  17,  24-26.  1  Pars,  on  Ship,  and 
Adm.  308. 

For  cases  where  it  was  held  that  the  contract  Aas  divisible,  and  a 
portion  of  the  freight  recoverable,  see  The  Erie,  1859,  3  Ware,  225; 
McGilvery  v.  Capen,  1856,  7  Gray,  525;  Brewer  v.  Churchill,  1858,  45  Me. 
64;  Brown  v.  Hunt,  1814,  11  Mass.  45;  Locke  v.  Swan,  1816,  13  Mass.  76. 
And  see  Cook  v.   Gowan,  1860,  15  Gray,  237. 

As  to  the  distinction  between  a  contract  for  letting  the  vessel  and  a 
contract  of  affreightment,  see  The  Erie,  1859,  3  Ware,  225-227;  Donahoe 
V.  Kettell,  1858,  1  Cliff.  135,  137-140. 


NOVEMBER   TERM,   1814.  817 


Drew  V.  Munsey. 


STRAFFORD,   NOVEMBER   TERM,    1814. 


Dolly  Drew  v.  David  Munsey. 

D.  recovered  judgment  against  W.  and  A.,  and  levied  execution  on  W.'s  real 
estate.  Upon  review,  W.  and  A.  recovered  judgment  against  D.  for  the  greater 
part  of  the  amount  included  in  the  original  judgment,  and  levied  their  execu- 
tion on  the  same  land. 

Held,  that  D.'s  widow  was  entitled  to  dower  in  said  land. 

This  is  a  writ  of  dower.  The  demandant,  who  was  the 
widow  of  John  Drew,  demands  dower  in  certain  land  in  pos- 
session of  tenant,  which  was  in  the  seisin  and  possession  of 
her  late  husband,  and  whereof  he  was  seised  in  his  demesne 
as  of  fee,  during  the  coverture. 

The  tenant  pleads,  as  to  all  except  eighteen  acres,  with  the 
buildings  ;  describing  the  said  eighteen  acres  : 

1.  That  the  said  John  and  the  demandant  were  never  law- 
fully married. 

This  issue  was  found  for  the  demandant,  on  very  satisfactory 
evidence.  They  were  married,  Jan.  8,  1793.  John  Drew  died 
May,  1811. 

2.  That  the  said  John  Drew  was  not  at  any  time,  during  the 
coverture,  seised  of  such  estate  as  that  the  demandant  could  be 
thereof  endowed. 

To  maintain  this  issue,  demandant  proved  that  Jonathan 
Williams  was  once  the  owner  (defendant,  the  tenant,  claimed 
under  him)  ;  (a)     and    that   John    Drew  obtained  judgment 

(a)  Jonathan  Williams  sold  to  Stephen  Davis,  Sept.  30,  1794.  Davis 
sold  to  John  Williams,  Nov.  8,  1796;  and  John  Williams  sold  to  tenant, 
April  4,  1801.  All  the  deeds  were  acknowledged  and  recorded  on  the 
several  days  before  mentioned,  except  the  last,  which  was  recorded 
September,  1801. 


318  STRAFFORD. 


Drew  V.  Munsey. 


against  the  same,^  at  the  S.  C,  Strafford,  April  Term,  1794, 
for  a  large  sum,  viz.  <£2,G50  Is.  10c?.  =  $8,860.32,  damages; 
and  extended  his  execution  on  the  parcel  now  in  issue  (with 
other  lands),  May  2,  1794.  (a)  There  was  no  other  evidence 
of  actual  possession  under  this  levy,  but  what  came  from  the 
testimony  of  Samuel  Drew,  a  son  of  demandant  by  the  same 
John  Drew.  He  thinks,  but  does  not  know  certain,  that  his 
father  received  rent  for  this  parcel,  as  he  did  for  the  other 
lauds  levied  on.  He  thinks  John  Williams  was  in  actual  pos- 
session after  his  father's  levy. 

The  tenant  also  proved  that  the  judgment,  Jo/m  Brew  against 
Jonathan  Williams  and  Andreiv  Drew,  was  reversed  on  review, 
at  September  Term,  1795,  for  $8,066.26 ;  that  is,  for  all  but 
$767.37.  The  execution  which  issued  on  this  judgment  of 
reversal  was  levied  on  the  same  lands  (with  others)  now  in 
issue.  (6)  There  has  been  no  redemption  of  the  lands  extended 
by  either  execution. 

Verdict  for  plaintiff  on  the  first  and  second  issues,  subject 
to  the  opinion  of  the  Court. 

[There  was  a  third  plea,  to  which  the  plaintiff  de- 
murred.] 

Moody  and  Ham,  for  the  plaintiff. 
Wm.  K.  Atkinson,  for  the  defendant. 

Smith,  C.  J.     Upon  these  facts  two  questions  arise. 

1.  Did  the  levy  of  May,  1794,  give  John  Drew  such  a  seisin 
as  to  entitle  his  wife  to  dower? 

2.  Has  that  right  been  defeated  by  the  judgment  and  levy 
in  1795? 

To  entitle  the  wife  to  dower,  it  is  necessary  that  the  husband 
should  be  seised,  some  time  during  the  coverture,  of  an  estate 
whereof  the  wife  is  dowable.     A  seisin  in  fact  is  not  neces- 

(a)  It  was  May  15,  1794:.     The  execution  was  returned  October,  1794. 
(i)  The  levy  was  commenced  Sept.  26,  1795. 

^  Against  Jonathan  Williams  and  Andrew  Drew. 


NOVEMBER   TERM,   1814.  819 


Drew  V.  Munsey. 


sary  ;  a  seisin  in  law  is  sufficient,  (a)   7  Mass.  253.     It  is  clear 
lliat  a  woman  is  entitled  to  dower  in  a  (qualified  or  base  fee, 
until  it  is  defeated.     Where  an  estate  in  fee   is   created,  or 
passes,  determinable   on   some  partfcular  event,   the    wife    is 
dowable ;    but    her  dower  ceases   with   the   estate.      That  is 
precisely  this  case.     She  is  dowable  in  lands  acquired  by  the 
husband  by  levy  of  execution  during  the  coverture  ;  but  her 
dower  ceases  with  redemption,  and  her  right  to  dower  is  de- 
feated by  redemption.    This  is  not  like  tiie  case  of  a  mortgage 
in  fee,  made  to  the  husband  during  the  coverture.     Before 
foreclosure,  the  mortgagee  has  an  e(piity  only,  a  chattel,  per- 
sonal estate.    The  mortgage  is  only  a  security.    The  mortgagor 
still  continues  the  real  owner.      Lord  Mansfield  says:   It  is 
an  aftront  to  common  sense,  to  say  that  a  mortgagor  is  not  the 
real  owner.     Doug.  G20.     In  the  case  of  extent,  the  debtor 
ceases  to  be  the  real  owner,  and  the  creditor  becomes  actually 
seised,  and  is  to  be  regarded  as  the  owner,  to  every  purpose,  till 
redemption.    This  estate  might  have  been  sold  by  John  Drew, 
or  extended  by  a  creditor  of  his.     It  is  clear,  therefore,  that  it 
is  subject  to  dower,  independent  of  the  evidence  of  actual  pos- 
session by  John  Drew.     Indeed,  that  evidence  was  not  suffi- 
cient to  prove  actual  possession  independent  of  the  extent. 

The  next  question  is.  Has  the  right  to  dower  been  defeated 
by  the  judgment  and  levy  in  1795  ? 

It  is  not  necessary,  in  this  case,  to  say  what  would  have 
been  the  effect  of  a  judgment  of  reversal  on  error.  It  would 
seem  that  this  would  have  defeated  tlie  right  to  dower.  That 
right  depended  on  a  judgment.  When  the  judgment  was  re- 
versed, there  was  no  longer  any  right. 

Nor  is  it  necessary  to  say  what  would  have  been  the  effect 
of  a  judgment  of  reversal  on  review,  not  in  part,  but  of  the 
whole  judgment  reviewed.  (6) 

It  was  holden,  in  Hodgdon  v.  Lougee,  S.  C,  Strafford,  Sep- 

(a)  1  Cm.  119,  155,  156.  A  right  to  such  seisin  is  sufficient.  7  Mass. 
253.  But  the  extent  of  an  execution  gives  the  creditor  actual  seisin. 
4  Mass.  150;  3  Mass.  215,  523. 

(b)  The  present  was  a  reversal,  on  review,  of  the  former  judgment  in 
part  only. 


320  STRAFFORD. 

Hodgdon  v.  Robinson. 

tember  Term,  1798,  that  John  Drew  could  sell  the  land  in- 
cluded in  the  levy  of  1794  ;  and  that  the  judgment  on  review, 
and  the  levy  under  it,  did  not  defeat  the  title  of  the  purchaser. 
It  could  only  be  defeated  by  redemption  within  the  year ;  and 
this  levy  was  not  a  redemption.  Indeed,  the  levy  of  1795  is 
predicated  on  the  idea  that  the  title  was  in  John  Drew  by  the 
levy  of  1794.  It  was  extended,  in  1795,  as  his  estate.  He 
was  seised.  His  wife  thereby  became  entitled  to  dower  in  the 
event  of  her  surviving  him. 

It  is  well  settled,  in  this  State,  that  the  wife's  title  to  dower 
is  not  defeated  by  levy  of  execution  for  the  husband's  debts. 
9  Mass.  8,  admitted  ;  5  Manuscript  Rep.  117,  Hartwell  and 
wife  V.  Root,  Cheshire,  May  Terra,  1804 ;  Colony  Laws,  99, 
100. 

It  is  extremely  clear,  therefore,  that,  on  the  points  saved  at 
the  trial,  the  demandant  is  entitled  to  judgment. 

Judgment  for  plaintiff} 


Moses  Hodgdon  v.  Walter  Robinson,  Neal  Cate, 
Phinehas  Johnson,  and  Robert  Lyford.  (Johnson 
and  Lyford  struck  out,  by  consent,  at  trial.) 

Wliere  an  execution  is  extended  on  two  tracts  of  land,  it  is  not  necessary  that  the 
same  persons  should  be  appraisers  on  both  tracts. 

This  was  ejectment,  to  recover  one-third  of  Lot  No.  37, 
Second  Division,  in  Brookfield. 

Each  of  the  defendants,  Robinson  and  Cate,  disclaims  all 
but  20i  acres,  without  bounding  the  same,  and  defends  the 
residue. 

It  was  agreed  that  one  Rebecca  Footman  was  entitled,  by 
descent,  to  one-third  of  the  lot. 

David  Rogers  [under  whose  deed  the  plaintiff  claims]  claims 
her  share  by  levy  of  execution,  Sept.  14,  1811. 

1  See  Haven  v.  Libhey,  and  Hodgdon  v.  Louyee,  reported  ante. 


NOVEMBER   TERM,  1814.  321 

Hodgdon  v.  Robinson. 

One  exception  only  was  taken  to  the  levy.     By  the  return, 
it  appears  that  the  execution  was  extended  on  two  parcels,  — 
the  one  now  in  issue,  and  another.     One  person  was  appraiser 
in  both  ;  two  others  were  joined  with  him  in  each. 
[The  defendants  claimed  under  a  tax  title.] 
Verdict  for  plaintiff,  subject  to  the  opinion  of  tiie  Court. 

Smith,  C.  J.  Suppose  return  states  that  A.,  B.,  and  C. 
were  chosen  (duly  stating  how)  to  appraise  the  parcel  now  in 
dispute,  and  that  C,  D,,  and  E.  were  chosen  to  appraise  the 
other  parcel,  and  all  five  were  sworn  to  appraise  such  estate  as 
should  be  shown  them.     Is  this  a  good  appraisal  ? 

If  not,  it  must  be  because,  by  the  statute,  the  same  persons 
must  appraise  all  the  estate  of  the  same  debtor  to  satisfy  the 
same  execution  ;  and  that,  if  this  be  not  the  course  pursued, 
the  whole  is  void. 

If  it  appear,  by  the  return,  that  the  debtor  has  chosen  one 
of  the  appraisers,  or  has  had  an  opportunity  to  choose,  it  would 
seem  that  he  could  not  complain  that  the  creditor  and  the 
officer  have  chosen  different  persons  for  different  parcels,  ex- 
cept on  the  score  of  expense.  And  where  he  chooses  different 
persons  for  different  parcels,  he  cannot,  even  on  this  account, 
complain. 

It  is  not  recollected  that  it  has  ever  been  holden  that  the 
same  three  persons  must  appraise  all  the  lands  extended  on 
the  same  execution. 

Cannot  the  creditor  put  his  execution,  after  extent  on  one 
parcel,  into  the  hands  of  a  different  officer?  Suppose,  after 
extent  on  one  parcel,  one  of  the  appraisers  shall  happen  to 
die.  When  the  lands  lie  in  different  counties,  there  must  be 
different  officers  and  different  appraisers. 

When  the  statute  speaks  of  three  appraisers,  it  may  in  all 
cases,  and  in  some  must,  be  understood  to  refer  to  a  particular 
parcel  or  parcels  appraised  by  the  same  men,  and  not  necessa- 
rily to  all  the  lands  which  may  be  extended  to  satisfy  the  same 
judgment,  or  even  the  same  execution. 

[The  Court  then  considered  the  defendant's  tax  title,  and 
held  it  invalid.     In  the  course  of  the  opinion,  it  was  said :  — 

21 


322  STRAFFORD. 


State  V.  Varney. 


"  This  assessment  seems  to  be  a  literal  compliance  with  the 
statute,  and  yet  it  does  not  seem  to  be  what  the  statute  re- 
quires. .  .  .  The  framers  of  the  act  seem  to  have  been  in  fault, 
and  not  the  poor  assessors  or  collector."] 

Judgment  on  the  verdict.^ 


State  v.  Jesse  Vaeney. 

Scire  facias  upon  a  recognizance  to  appear  at  a  term  of  court,  and  answer  to  all 
such  matters  as  should  be  objected  against  the  recognizor,  and  not  depart  with- 
out leave.  Plea,  that,  at  that  term,  nothing  was  objected  by  the  State  against 
the  recognizor. 

Plea  held  bad. 

Scire  facias  on  recognizance.  Scire  facias  issued  March 
7,  1812,  returnable  to  September  Term,  1812.  The  recog- 
nizance was  taken  before  D.  M.  Durel,  J.  P.,  Jan.  18,  1812. 
Samuel  Ladd,  as  principal,  in  $250,  and  defendant  and  J.  L., 
as  sureties,  each  in  1125,  recognized  for  S.  L.'s  appearance  at  the 
S.  C,  Strafford,  February  Term,  1812,  "  to  answer  to  all  such 
matters  as  should  be  then  and  there  objected  against  him, 
especially  in  relation  to  the  complaint  of  B.  H.  Palmer,  and  not 
depart  without  leave."  At  February  Term,  S.  L.  did  not  ap- 
pear, (a)  the  recognizors  were  all  called,  and  the  recognizance 
estreated,  and  this  scire  facias  ordered. 

At  November  Term,  1813,  defendant  pleaded,  in  bar  of 
execution,  that,  at  the  S.  C,  February  Term,  1812,  nothing 
was  objected  by  the  State  against  S.  L.,  and  especially  nothing 
in  relation  to  the  complaint  of  B.  H.  Palmer.     The  solicitor 

(a)  The  scire  facias  states  that  S.  L.,  though  called  at  February  Term, 
1812,  did  not  appear,  but  made  default.* 

1  S.  P.  Boylston  v.  Carver,  1814,  11  Mass.  515. 

*  This  allegation  is  material:  State  v.  Chedey,  1828,  4  N.  H.  366;  and  it  is  also 
necessary  to  aver  that  the  default  appears  of  record:  PhMrick  v.  Buxton,  1862,  43  N.  H. 
462. 

As  to  amendments,  see  Gen.  Laws,  c.  259,  §  15. 


NOVEMBER   TERM,   1814.  323 

State  V.  Varney. 

in  behalf  of  the  State  (protesting  that  certain  things  were 
objected  against  Ladd,  on  complaint  of  B.  H.  Palmer)  says 
that  Ladd  did  not  appear  and  answer,  agreeably  to  the  tenor 
of  his  recognizance.  Defendant  demurs,  and  the  solicitor  joins 
in  demurrer. 

ffale  and  Webster,  for  defendant. 
Moody,  for  State. 

Smith,  C.  J.  The  question  is  not  whether  the  defendants 
may  not  be  entitled  to  relief,  but  whether  the  matter  pleaded 
is,  in  law,  a  bar  to  the  award  of  execution.  The  defendant 
stipulated  that  Samuel  Ladd  should  appear  at  the  S.  C,  Febru- 
ary Term,  1812,  and  answer  to  all  such  matters  as  should  be 
objected  against  him,  especially  in  relation  to  the  complaint 
of  one  Palmer,  and  not  depart  without  license.  It  is  admitted 
that  Ladd  did  not  appear  ;  but  he  excuses  his  non-compliancQ 
with  the  condition  of  the  recognizance  on  the  ground  that  his 
compliance  would  have  been  of  no  advantage  to  the  public, 
because  nothing  was  objected  against  Ladd.  This  plea  is 
predicated  on  the  idea  that  the  engagement  that  Ladd  should 
appear  is  not  absolute,  but  conditional  ;  that  is,  Ladd  was  to 
appear  if  the  State  objected  any  thing  against  him  at  that 
Term  ;  tliis  must  mean,  if  the  Attorney-General  filed  an 
information,  made  a  motion,  or  the  grand  jury  found  a  bill. 
Upon  this  recognizance,  the  State  could  only  demand  per- 
formance when  a  bill  was  found,  or  information  filed  and 
motion  for  commitment ;  so  that  Ladd  need  not  attend  the 
first  day ;  well  enough  if  he  get  in  the  second  week  of 
the  court.  Now  all  this  is  extremely  new  and  very  ingenious. 
Suppose  it  should  so  happen  that  there  was  no  public  prose- 
cutor at  that  Term,  or  no  grand  jury.  Why,  then,  no  person 
under  recognizance  need  give  himself  the  trouble  to  attend  ; 
he  can  plead  the  public  negligence  as  an  excuse  for  his  own. 
Blackstone  says,  our  sturdy  ancestors  thought  it  beneath  their 
dignity  to  appear  at  first  summons  in  civil  suits.  But  Samuel 
Ladd  goes  further ;  he  scorns  to  be  troubled,  unless  the  State 


324  STRAFFORD. 


State  V.  Varney. 


are  all  ready,  and  have  need  of  him.  But  suppose,  on  account 
of  the  non-attendance  of  witnesses,  neither  information  nor 
indictment  can  be  found,  and  the  Attorney-General  should 
think  it  his  duty  to  move  that  defendant  find  new  sureties 
for  his  appearance  next  Term  ;  this  cannot  be  done.  Samuel 
Ladd  was  only  demandable  in  case  of  indictment  found  or 
information  filed. 

To  one  wlio  gets  what  little  knowledge  he  may  have  on 
these  subjects  from  books,  all  this  must  seem  very  absurd. 
He  can  understand  this  recognizance  in  no  other  sense  than 
as  imposing  on  the  accused  the  obligation  of  appearance, — 
absolute  and  unconditional  appearance,  not  depending  on  any 
supposed  occasion  or  necessity  for,  or  utility  in,  his  appear- 
ance. "•  To  answer  to  what  may  be  objected  "  is  inserted 
merely  to  distinguish  this  from  a  recognizance  of  a  different 
kind.  There  are  different  kinds  of  recognizances  :  to  keep 
the  peace  ;  be  of  good  behavior ;  appear  and  testify ;  appear 
and  answer.  This  is  of  the  latter  kind.  Suppose  it  had  been 
to  testify,  and  the  cause  should,  on  some  other  account,  be 
continued  ;  would  it  be  pretended  that  the  recognizance  was 
not  forfeited  ?  Suppose,  to  be  of  good  behavior ;  could 
recognizor  plead  that  he  had  behaved  well,  and  therefore  his 
appearance  not  necessary  ? 

It  seems  clear  that  a  recognizance  may  be  discharged  (but 
not  clear  that  this  may  be  pleaded  after  recognizance  declared 
forfeited)  by  dissolution  of  the  body  politic,  the  State  ;  death 
of  recognizor ;  by  order  of  court ;  or  [?]  release  of  'dny  one 
who  has  the  control  of  the  prosecution.  Com.  Dig.  PI.  2  W. 
34;  Cro.  Eliz.  608;  Com.  Dig.  Justice  Peace,  B.  6,  7,  8 ; 
Parker,  54 ;  1  Wils.  315  ;  11  Mod.  200.  I  think,  in  this  case, 
defendant  could  only  plead  death  of  Samuel  Ladd  ;  this  might 
answer  the  purposes  of  public  justice  as  well  as  his  appear- 
ance. This  engagement  is  definite,  and  certain,  and  abso- 
lute, (a)     There  are  cases  where  other  pleas  might  be  made. 

(a)  Suppose  S.  L.  had  appeared,  and  nothing  was  objected  by  P.  or 
any  other;  still  held  recognizance  forfeited,  unless  discharged  by  order  of 
court.     2  Hawk.  178.     See  Strange,  1220. 


NOVEMBER   TERM,  1814.  325 

State  V.  Varney. 

Recognizance  for  good  behavior ;  the  party  appears  ;  doubt- 
less he  may  plead  has  behaved  well.  This  is  matter  en  pais  ; 
to  save  forfeiture.     6  G.  Bacon,  108. 

How  could  the  plaintiffs,  the  State,  answer  this  plea?  The 
State  cannot  say.  We  would  have  objected,  if  he  had  ap- 
peared ;  we  would  have  moved  for  new  sureties  to  appear  at 
next  Term  ;  we  would,  as  the  State  may,  by  law,  when  any 
man  appears  in  court,  for  good  cause,  require  sureties  for 
good  behavior,  &c.  They  must  plead  bill  found,  or  informa- 
tion filed  ;  or,  perhaps,  though  this  plea  excludes  it,  that  they 
would  have  objected  if  not  disappointed  in  the  attendance  of 
the  attorney-general,  the  grand  jury,  a  principal  witness. 
All  this  shows  the  absurdity  of  the  principle  on  which  this 
plea  is  bottomed. 

I  do  not  say  that  nothing  can  be  pleaded  after  forfeit- 
ure declared,  but  I  am  clear  that  the  record  cannot  be  contra- 
dicted, (a)  Indeed,  this  plea  does  not  attempt  it.  Certain, 
however,  it  is  that  many  things  may  be,  and  usually  are, 
alleged,  to  prevent  forfeiture,  or  estreating  as  it  is  called, 
which  could  not  avail  by  way  of  plea.  On  sufficient  cause 
shown,  courts  respite  recognizances,  i.  e.  the  forfeiture,  delay 
issuing  of  scire  facias^  &c.  10  Mod.  278.  So,  in  England, 
under  certain  statutes,  after  levy  on  judgment  on  scire  facias, 
they  may  order  the  money  to  be  restored  in  [on?]  payment 
to  prosecutor  his  costs.  This  is  under  Stat.  4  Geo.  Ill  ; 
4  Burr.  2118;  11  Mod.  200;  1  Wils.  315.  This  relief  by 
statute  is  a  different  thing  ;  it  cannot  be  claimed  by  plea. 
In  this  State,  part  of  the  debt,  when  collected,  may  be  paid 
over,  by  order  of  court,  to  a  prosecutor.  Laws,  ed.  1805,  238. 
Perhaps,  in  this  case,  the  C.  C.  P.,  as  this  forfeiture  accrues 
to  the  county  (Laws,  ed.  1805,  238),  may  remit  it,  p.  56. 

But  I  presume  nothing  serious  was  intended  by  this  plea, 
and  an  apology  may  be  due  for  treating  it  with  the  gravity  I 
have  done  ;  and  yet,  perhaps,  the  dignity  of  one  of  the  parties 
requires  all  this  gravity. 

(a)  That  defendant  could  not  say  —  did  appear;  or  make  any  excuse 
for  non-appearance,  except,  perhaps,  that  bail  may  show  principal  dead. 


326  STRAFFORD. 


State  V.  Varney. 


Let  the  demurrer  then  stand  ;  the  plea  in  bar  be  adjudged 
insufficient  ;  and  execution  be  awarded  for  the  sum  men- 
tioned in  the  recognizance  in  each  of  these  cases,  v.  Locke, 
and  V.  Varney.^ 

[According  to  the  record,  the  replication  was  held  good  ;  and 
execution  issued  against  Varney.] 

1  This  decision  is  sustained  by  Slate  v.  Stout,  1829,  G  Halst.  124; 
State  V.  Cooper,  1829,  2  Blackf.  (Ind.)  226;  Allerj  v.  People,  1844,  1  Gilm. 
(111.)  109;  Cliamplain  v.  People,  1848,  2  N.  Y.  (Comstock)  82;  Garrixon 
V.  People,  1859,  21  111.  535;  Pack  v.  State,  1801,  23  Ark.  235;  Fleece  \. 
State,  1865,  25  Ind.  384  ;  Wheeler  v.  People,  1866,  39  111.  430.  And  see 
also  Fitch  V.  State,  1820,  2  J^ott  &  M.  558;  Savage,  C  J.,  in  People  v. 
Stager,  1833,  10  Wend.  431,  434;  State  v.  Haskett,  1836,  3  Hill  (S.  C), 
L.  95;   United  States  v.  White,  1837,  5  Cranch,  C  C.  368;  State  v.  Cole, 

1857,  12  La.  Ann.  471  ;  State  v.  Ansley,  1858,  13  La.  Ann.  298;  Mer- 
rick, C.  J.,  in  State  v.  Forno,  1859,  14  La.  Ann.  454,  455;  Stale  v.  Loeb, 
1869,  21  La.  Ann.  599;  State  v.  Poston,  1876,  63  Mo.  521;  1  Chit.  Crira. 
L.  105. 

State  V.  Brown,  1864,  16  Iowa,  314,  is  an  authority  in  the  opposite 
direction.  See  also  People  v.  Lafarrje,  1853,  3  Cal.  130;  Liceth  v.  Cohh, 
1855,  18  Ga.  314 ;   State  v.  Lockhart,  1858,  24  Ga.  420 ;  State  v.  Woodle;/, 

1858,  25  Ga.  235;  People  v.  Hunter,  1858,  10  Cal.  502;  Bryant  v.  Com- 
momoealth,  1867,  3  Bush,  9;  Commonwealth  v.  Blincoe,  1867,  3  Bush,  12 
(but  compare  3  Bush,  19.  22,  550);  Territory  v.  Hildebrand,  1876,  2  Hon.  T. 
426;  Lamp  v.  Smith,  1876,  56  Ga.  589. 

The  views  expressed  by  James,  J.,  in  People  v.  Felton,  1860,  36  Barb. 
429,  435,  436,  do  not  impugn  the  result  reached  in  State  v.  Varney; 
although  they  are  irreconcilable  with  some  of  the  cases  cited  above  in 
support  of  that  decision. 

In  some  States,  by  statute  or  long  usage,  the  condition  of  the  recog- 
nizance is  much  narrower  than  that  in  State  v.  Varney.  It  is  supposed 
that  decisions  turning  upon  these  restricted  conditions  are  not  to  be 
regarded  as  authorities  in  conflict  with  State  v.  Varney. 


NOVEMBER   TERM,  1814.  327 


Thompson  v.  Bennet. 


Eben  Thompson  v.  John  Bennet. 

Under  tlie  statute  of  1701,  a  deed  attested  b^v  only  one  witnes^s  will  not  pass  the 
land,  even  as  against  tlie  grantor.  An  instrument  not  attested  as  the  statute 
requires  cannot  operate  as  a  common-law  conveyance  ;  the  mode  of  execution 
prescribed  by  the  statute  excludes  all  other  modes. 

Ejectment,  to  recover  three  parcels  of  land  situate  in  New- 
Durham.  Plaintiff  declares  on  his  own  seisin  within  twenty 
years. 

Plea :  general  issue. 

To  support  his  title,  plaintiff  offers  in  evidence  a  deed  made 
by  defendant  to  him,  May  30, 1800,  acknowledged  same  day,  and 
recorded  the  next  day,  wliereby  it  appears  that  the  defendant, 
for  the  consideration  of  $480,  conveyed  the  same  three  parcels 
to  the  plaintiff,  to  hold  in  fee ;  defendant  covenanting  that  he 
was  tlie  lawful  owner  of  the  premises,  seised  and  possessed 
thereof  in  his  own  right,  in  fee-simple,  and  had  full  power  and 
lawful  authority  to  convey  the  same  in  manner  aforesaid  ;  that 
the  premises  were  free  and  clear  of  all  incumbrances  ;  and  tiiat 
the  defendant  would  warrant  the  same  against  the  lawful  claims 
and  demands  of  all  persons.  To  prove  that  defendant  signed  and 
sealed  the  deed,  and  that  the  same  was  delivered,  acknowledged, 
and  recorded,  it  was  proved  that  the  name  Daniel  Reynolds, 
only  subscribing  witness,  was  his  handwriting,  and  that  he  is 
dead.  But  defendant  still  objects  to  its  being  read  in  evidence, 
to  maintain  plaintiff's  action,  because  it  was  signed,  witnessed, 
or  attested  by  one  witness  only;  whereas  the  statute,  Feb.  10, 
1791,  ed.  1805, 155,  requires  two  or  more  to  make  a  deed  valid 
to  pass  lands,  without  any  other  act  or  ceremony  in  law. 

The  plaintiff  offers  no  other  evidence. 

Was  this  deed  admissible,  and  is  it  sufficient  to  maintain  the 
action  ? 

If  these  questions  are  answered  in  the  affirmative,  judgment 
is  to  be  entered  on  the  verdict  for  the  plaintiff;  otherwise  it  is 
to  be  set  aside,  and  a  general  verdict  entered  for  defendant. 

Freeman  {Mason  and  J.  P.  Hale  with  him],  for  plaintiff. 
Webster  \_Moody  and  Tilton  with  him],  for  defendant. 


828  STRAFFORD. 


Thompson  v.  Bennet. 


Smith,  C.  J.     At  common  law,  the  mode  of  transferring  a 
freehold  estate  in  lands  was  for  the  seller  to  go  with  the  pur- 
chaser on  to  the  lands,  and  there  declare  (for  in  early  times 
writing  was  very  little  known),  in  the  presence  of  the  neigh- 
boring tenants,  the  sale  ;   show  the  boundaries  ;  and  deliver 
possession  to  the  purchaser.    This  was  called  a  feoffment,  and, 
for  ages,  was  the  only  mode   of  passing  a  fee-simple ;  and, 
tliough  it  serves  equally  well  to  pass  other  estates  of  freehold, 
yet  it  was  held  properly  to  signify  a  conveyance  in  fee.     Es- 
tates less  than  freehold  were  deemed  of  so  little  consequence 
that  little  solemnity  or  notoriety  was  necessary  in  the  transfer 
of  them.     Though  a  writing,  a  deed,  or  charter  was  not  es- 
sentially necessary,  yet  in  time  it  became  usual.     The  writing 
was  very  brief.     The  substantial  part  of  the  conveyance  was 
not,  and  could  not  be,  included  in  it,  though  usually  indorsed 
upon  it ;  I  mean,  livery  and  seisin.     Without  it,  the  deed,  or 
any  words  of  conveyance,  passed  only  an  estate  at  will.     It  is 
strange  tiiat  what  was  once  of  the  essence  of  the  transaction 
should,  in  time,  come  to  be  considered  as  a  ceremony;  for  so  it 
is  alluded  to  in  our  statute  of  conveyance.     When  the  object  of 
the  conveyance  was  a  fee-simple,  it  may  easily  be  supposed 
that  the  persons  called  to  bear  witness  might  easily  retain  in 
their  memories  all  that  was  necessary  to  be  remembered.    The 
witnesses  were  the  neighboring  tenants,  who  held  their  lands 
of  the  same  superior.    But  when  the  proprietor  of  lands  became 
desirous  of  making  such  a  disposition  of  them  as  his  prudence, 
justice,  the  convenience  of  his  family,  or  caprice,  dictated,  it  is 
very  obvious  that  written  deeds  would  be  indispensably  neces- 
sary.    The  conveyance  by  feoffment  is  calculated  for  a  well- 
settled  country,   where   the  lands   are  holden  of  a  superior, 
where  the  feudal  system  prevails,  and  the  tenants  are  illiterate. 
It  is  not  adapted  to  a  refined,  commercial,  and  improved  state 
of  society.     For  some  time  before  the  reign  of  Henry  VIII., 
deeds,  or  charters  of  feoffment,  were  in  general  use  ;  and  in 
these  deeds  the  peculiar  purpose  and  intention  of  the  parties 
were  expressed.     Still,  tliey  were  only  used  in  company  with 
that  which  in  fact  passed  the  land,  —  livery  and  seisin. 

It  is   well   known   that  the    feudal    system  imposed  many 


NOVEMBER   TERM,  1814.  329 

Thompson  v.  Bennet. 

restraints  on  alienation.  It  may  easily  be  supposed  that  men, 
in  early  times,  must  have  been  desirous  of  getting  rid  of  these 
restraints ;  and  the  clergy  of  that  day,  who  had  nearly  all  the 
learning,  were  desirous,  for  the  best  purposes  in  the  world,  of 
getting  into  their  possession  some  portion  of  the  land,  which 
was  then  the  only  source  of  wealth  in  the  nation.  The  statutes 
of  mortmain  restrained  religious  houses  from  purchasing  or  hold- 
ing lands.  About  the  year  1377,  they  contrived  a  new  method 
of  conveyance,  and  which  was  held  not  to  come  within  the 
prohibition  of  the  statutes.  Lands  were  granted,  not  to  them- 
selves directly,  but  to  nominal  feoffees,  to  the  use  of  the 
religious  houses ;  the  latter,  as  entitled  to  the  use,  receiving 
the  actual  profits,  while  the  seisin  of  the  land,  or  the  legal 
title,  remained  in  the  nominal  feoffee.  The  courts  of  equity 
compelled  the  feoffee  to  account,  to  him  who  had  the  use,  for 
the  rents  and  profits.  In  this  way,  the  clergy  became,  in  fact, 
the  owners  of  the  land.  The  feoffee  was,  in  equity,  considered 
as  a  naked  trustee,  and  held  the  legal  title  for  the  benefit  of 
another.  The  barons,  who  were  jealous  of  the  clergy,  and 
dreaded  their  influence  over  the  common  people,  procured  an 
act  of  parliament  disabling  the  clergy  from  holding  lands  even 
in  this  way.  It  was  soon,  however,  perceived  by  the  sturdy 
and  illiterate  barons  themselves,  that  this  mode  of  conve3'ance, 
thus  invented  and  practised  by  the  clergy,  suited  their  views  ; 
for,  in  effect,  it  conferred  the  power  of  devising,  which  was 
not  permitted  by  law.  In  this  wa}^  too,  the  owner  of  lands 
was  enabled,  in  his  lifetime,  to  charge  and  incumber  them,  and 
to  make  his  real  estate  liable  to  a  multitude  of  conditions  and 
minute  designations  [?],  for  the  purpose  of  raising  money 
without  an  absolute  sale  of  the  land.  He  could  also  make 
provision  for  the  numerous  branches  of  his  family  ;  and,  which 
was,  perhaps,  of  still  more  consequence,  he  could  secure  his 
estate  from  forfeiture  for  his  treasons  and  other  crimes,  and 
relieve  it  from  the  rigor  of  many  feudal  burdens.  Accord- 
ingly, it  is  said  that  uses  had  grown  almost  universal  before 
the  end  of  the  fifteenth  century,  and  the  courts  of  equity  had 
reduced  this  method  of  conveyance  into  a  regular  system. 
It  is  not  to  be  imagined  that  this  mode  of  conveyance  would 


330  STRAFFORD. 


Thompson  v.  Bennet. 


be  agreeable  to  the  King  and  the  great  feudal  lords.  It  was, 
moreover,  attended  with  many  and  great  inconveniences  to  all 
classes  of  the  people,  inasmlich  as  it  was  secret,  and  received 
no  countenance  from  the  courts  of  law.  These  evils  were 
attempted  to  be  remedied  by  several  statutes,  the  provisions 
of  which  tended  to  consider  him  who  had  the  use  as  the 
real  owner  of  the  estate ;  and,  at  length,  that  idea  was 
carried  into  complete  effect  by  the  statute  of  27  Henry  VIIL, 
which  is  usually  called  the  Statute  of  Uses.  If  it  was  intended, 
by  this  statute,  to  destroy  uses,  as  some  have  supposed,  the  end 
was  not  answered.  They  abolished  the  estate  of  the  feoffee 
by  annexing  it  to  the  estate  of  him  who  had  the  use.  In 
short,  the  statute,  instead  of  destroying,  legalized  this  mode  of 
conveyance.  I  think  it  must  have  been  foreseen  that  it  would, 
in  practice,  entirely  supersede  the  old  mode  by  feoffment.  In- 
deed, while  it  labored  under  the  disadvantage  of  having  no 
legal  foundation,  —  depending  on  the  courts  of  equity  entirel}' 
for  its  execution,  —  we  are  told  that  it  was  in  general  use 
in  the  nation.  The  sentiments  of  the  nation  called  for  the 
change. 

It  was  the  excellence  of  this  statute  that  it  legalized  con- 
veyance by  deed  without  livery  of  seisin.  But  it  certainly 
was  a  very  great  defect  that  it  made  no  provision  for  giving 
notoriety  to  the  transaction.  To  prevent,  therefore,  clan- 
destine conveyances  of  freehold  estates,  it  was  enacted,  in 
the  same  session  of  Parliament,  that  such  bargains  and  sales 
should  not  inure  to  pass  a  freehold,  unless  made  by  indenture 
and  enrolled.  It  is  not  easy  to  perceive  why  the  form  of  in- 
denture was  required,  but  the  reasons  for  enrolment  must 
strike  every  mind.  If  a  nation  were  about  to  devise  a  mode 
of  conveyance,  and  the  people  were  generally  able  to  read  and 
write,  that  mode  would  doubtless  be  a  deed  which  should  con- 
tain the  evidence  of  the  agreement  of  the  parties,  the  terms 
and  conditions  of  the  sale,  a  description  of  the  land  sold,  the 
estate  or  interest  intended  to  be  passed ;  which  should  be 
solemnly  executed,  to  prevent  surprise,  fraud,  and  imposition  ; 
and  recorded  in  some  public  and  convenient  place,  for  the 
double  purpose  of  preserving  the  evidence  of  the  sale  and  of 


NOVEMBER   TERM,  1814.  331 

Thompson  v.  Bennet. 

making  it  manifest  to  all  men.  Substantially,  the  Statute  of 
Uses,  with  the  Statute  of  Enrolment,  extended  to  all  estates  as 
well  as  those  of  freehold,  answers  this  description  ;  but  the 
manner  in  which  this  conveyance  operates  is  the  effect  of  the 
peculiar  circumstances  which  gave  it  birth.  It  was  not  an 
original  invention,  but  an  improvement  of  an  invention  ;  the 
doctrine  of  uses  then  in  being.  Hence  it  results  that  a  con- 
veyance by  deed  of  bargain  and  sale  can  only  be  made  when 
an  use  can  be  raised.  If  the  use  is  raised  by  deed,  there  must 
be  a  pecuniary  consideration.  The  deed  does  not  pass  the 
land  ;  it  passes  the  use,  and  the  statute  passes  the  land  to  him 
to  whom  the  deed  conveyed  the  use.  The  feoffment  trans- 
ferred the  actual  possession  ;  the  bargain  and  sale  transferred 
it  in  law.  To  constitute  a  good  conveyance  by  bargain  and 
sale,  there  must  be  an  use  raised  ;  and,  for  that  purpose,  there 
must  be  a  person  seised  to  the  use  of  some  other  person  ;  there 
must  be  a  cestui  que  use  in  esse  and  an  use  in  esse,  in  posses- 
sion, remainder,  or  reversion.  In  short,  all  the  learning  — 
subtle,  intricate,  and  nice  as  it  was  —  respecting  uses  is  neces- 
sary to  understand  the  conveyance  by  bargain  and  sale,  lease 
and  release,  and  covenant  to  stand  seised  to  uses. 

The  first  settlement  of  this  country  may  be  taken  to  be 
between  1620  and  1680,  perhaps  the  latter.  Little,  if  any, 
of  our  legal  notions  is  derived  from  New  Plymouth  Colony. 
There  was  no  general,  separate  government  in  New  Hamp- 
shire before  1679.  Before  the  union  with  Massachusetts, 
about  1640,  Dover,  Portsmouth,  and  Exeter  were  separate 
"combinations."  H.  [Hampton?]  was  always  claimed  by 
Massachusetts.  It  is  not  known  by  what  law  these  combina- 
tions were  governed,  or  what  law  they  acknowledged.  From 
Massachusetts,  then,  we  are  to  draw  our  notions  of  early  law  in 
this  State. 

At  the  first  settlement  of  this  country,  feoffments  were  little 
used  in  England.  They  had  become  obsolete  even  before  the 
Statute  of  Uses,  1535,  a  century  before  this  country  was 
settled,  (a)     Deeds  of  bargain  and  sale  took  their  place  ;  and, 

(a)  Feoffment  had  long  before  lost  most  of  its  solemnity  and  notoriety. 
Rob.  262-272. 


332  STRAFFORD. 


Thompson  v.  Bennet. 


if  the  Statute  of  Enrolment  had  been  observed,  it  would  have 
introduced  an  almost  universal  register  of  conveyances  of  the 
freehold.     A    short  time  before    the  first  settlement  of  this 
country,  conveyance  by  lease  and  release  had  crept  into  use  ; 
as  this  mode  did  not  require  enrolment,  it  soon  superseded,  in 
England,  the   conveyance  by  bargain    and  sale  ;  for  there,  as 
well  as  everywhere  else,  men  have  always  inclined  to  secret 
conveyances.     But  it  does  not  seem  to  have  found  its  way 
into  this  country.     I  have  had  an  opportunity,  both  in  this 
State  and  in  Massachusetts,  to  examine  many  ancient  convey- 
ances, and  have  found  no  trace  of  it.     The  conveyances  at 
common  law,  by  lease,  lease  and  release,   and  release  alone, 
were  in  a  great  measure  inapplicable  ;  there  was  little,  if  any, 
occasion  for  leases  and  releases  in  early  times.     When  English 
men,  or  English  corporations,  had  occasion  to  transfer  lands 
in  this  country,  they  generally  did  it  by  feoffment  with  livery, 
till  a  statute    mode  was  prescribed  here.     The  deeds  of  the 
Council  of  Plymouth  to  Bradford  of  [?]  New  Plymouth  Colony, 
of  the  large  tract  on  both  sides  of  K.  river  ;  to  Capt.  John  M., 
of   New    Hampshire ;    of  Masonia   in   Maine ;    to    Sir    Henry 
Rosewell  and  others,  of  Massachusetts  ;  to  Gorges,  of  a  part 
of  Maine  ;  to  Aldsworth  and  Elbridge,  of  Pemaquid,  —  are  all 
deedsof  feoffment  accompanied  with  livery  and  seisin.     Several 
Indian    conveyances,  in  very  early  times,  were  made  in  the 
same  way.     This  was  a  mode  of  conveyance  more  intelligible 
to  the  savages  than  conveyances  deriving  their  operation  from 
the  doctrine  and  statute  of  uses.     But  I  do  not  find  that  the 
inhabitants  of  this  country,  except  in  a  very  few  instances,  ever 
conveyed  by  feoffment.     Indeed,  that  mode  was  singularly  ill- 
adapted  to  their  situation.     It  could  hardly  be  said  that  our 
lands  were  holden  of  any  superior.     The  tenure  was,  indeed, 
nominally  that  of  free  and  common  socage,  but  no  services,  in 
fact,  were  due  to  any  superior  in  respect  of  lands,  any  more 
than  in  respect  of  personal  property.     There  was  no  occasion 
for  any  investiture  ;  and  we  had  no  occasion  for  any  person 
circumstanced   like   the    ancient  pares,    tenants   of  the  same 
lord,  to    witness    the    livery  of  seisin.     Besides,  in  a  wilder- 
ness, how  could  witnesses  remember  the  boundaries  between 


NOVEMBER   TERM,   1814.  333 

Thompson  v.  Bennet. 

different  tracts  of  land  which  were  daily  undergoing  a  change, 
in  their  progress  from  a  wilderness  to  cultivated  fields,  (a) 
This  mode  of  conveyance  had  been  disused  for  more  than  a 
century  in  the  country  from  which  they  emigrated  ;  it  had 
been  superseded  by  written  conveyances.  The  first  settlers 
were  by  no  means  illiterate  ;  they  would  not  suffer  by  a  com- 
parison with  their  descendants  in  point  of  literature.  They 
were  capable  of  estimating  the  advantages  of  a  general  regis- 
try of  conveyances.  The  deed  of  bargain  and  sale  was  in 
general  use  in  England.  Without  some  modifications,  it 
could  not  well  be  introduced  here.  The  colony  was  not 
divided  into  counties  till  1643.  Before  that  division  we  had 
no  courts  answering  to  those  mentioned  in  the  Statute  of  Enrol- 
ment. After  the  division  we  had  none  of  the  same  names,  and 
no  such  county  officers  as  were  contemplated  by  the  statute. 

It  is  probable  that  few  transfers  were  necessary  at  the  first 
settlement.  The  Government  granted  by  vote.  Neither 
livery  and  seisin,  or  enrolment,  were  necessary,  viewing  us  as 
a  sovereign  power,  which  was  pretty  much  the  light  in  which 
we  viewed  ourselves.  There  was  then  no  traffic  in  land,  and 
that  valuable  class  of  men  called  land-jobbers  was  entirely 
unknown.  (6) 

Regulations  were  early  made  to  ascertain  the  extent  of 
grants,  and  for  recording  actual  surveys,  in  the  several  town- 
ships ;  requiring  individuals,  as  well  as  grantees  of  townships, 
to  set  out  their  bounds  and  record  surveys,  &c.,  1634.  But 
these  regulations  do  not  comprehend  the  recording  of  titles, 
the  evidence  of  grants,  or  conveyances. 

By  a  law  of  1639,  it  was  ordered  that  there  be  records  kept 
(books  in  which)  to  record  all  men's  houses  and  lands,  being 
certified  under  the  hands  of  the  men  of  every  town  deputed  for 

(a)  This  mode,  in  such  a  country  as  ours,  and  especially  at  that  day, 
was  neither  easy,  certain,  nor  notorious;  not  calculated  to  prevent,  but 
to  encourage,  frauds  and  perjuries.  It  wants  the  sanction  and  certainty  of 
a  record  to  preserve  the  memory  of  the  transaction. 

(6)  Grants  were  usually  made  of  large  tracts  to  different  companies  of 
adventurers.  These  assigned  small  portions  to  each  individual;  the  resi- 
due they  held  in  common. 


334  STRAFFORD. 


Thompson  v.  Bennet. 


the  ordering  of  their  affairs.  It  is  not  clear  whether  this  was 
to  be  a  recording  by  the  secretary  of  the  colony,  or  the  clerk 
of  the  town.  As  no  laws  were  made  respecting  deeds,  or 
requiring  their  enrolment  or  recording,  I  conclude  the  first 
settlers,  who  were  many  of  them  from  London  and  other  cities 
or  boroughs,  concluded  a  deed  was  sufficient  to  pass  lands 
without  recording,  because  it  was  so  in  the  place  from  which 
they  came  ;  for  land  in  any  city,  borough,  or  town  corporate, 
was  not  within  the  Statute  of  Enrolment.  I  do  not  think  that 
they  understood,  or  intended  to  adopt,  the  Statute  of  Uses  (and 
the  Statute  of  Enrolment  makes  a  part  of  it),  for  they  do  not 
appear  to  have  complied  with  it ;  but  they  had  this  general 
impression,  tliat  lands  might  be  conveyed  by  deed  without 
livery  and  without  enrolment,  and  so  it  might  in  London,  &c.  ; 
and  it  would  be  some  time  before  they  would  experience  any 
inconvenience  from  this  usage,  and  it  could  hardly  be  expected 
that  they  should  be  more  discerning  than  the  people  they  left 
behind,  in  foreseeing  the  frauds,  contentions,  and  suits  which 
naturally  flow  from  secret  and  clandestine  conveyances. 
When  time  discovered  them,  they  would  naturally  apply  a 
remedy. 

Accordingly,  in  1640,  an  act  respecting  conveyances  was 
made.  The  preamble  shows  the  mischief:  For  avoiding  all 
fraudulent  conveyances,  and  that  every  man  may  know  what 
estate  or  interest  other  men  have  in  any  houses  or  lands  they 
are  to  deal  in.  By  way  of  remedy,  it  was  enacted  that  no 
.  .  .  .  1  or  grant  or  sale  of  any  houses  or  lands,  wliere  the 
grantor  remains  in  possession,  shall  be  of  any  force  against  any 
person  but  the  grantor  and  his  heirs,  unless  acknowledged 
before  some  magistrate,  and  recorded  by  the  clerk  of  the 
shire  £?]  court,  not  at  length,  but  the  names  of  grantor, 
grantee,  date,  and  the  thing  and  estate  granted.  Tliis  is  the 
first  act  which  required  acknowledgment  and  recording.  This 
act  clearly  implies  that,  as  the  law  was  then  understood,  a 
deed  not  acknowledged  or  recorded  gave  the  grantee  a  good 

1  Abbreviations  are  used  here  in  the  manuscript,  probably  signifying 
different  forms  of  conveyance  named  in  the  statute. 


NOVEMBER   TERM,   1814.  335 

Thompson  v.  Bennet. 

title ;  (a)  the  deed  was  good  against  all  persons,  though  the 
grantoi-  remained  in  possession.  Some  such  case  as  this  prob- 
ably occurred,  which  occasioned  the  statute.  A.,  in  posses- 
sion, conveyed  or  mortgaged  to  B. ;  A.  remained  in  possession  ; 
afterwards  C,  supposing  A.  was  owner,  takes  a  conveyance 
absolute  or  in  mortgage  ;  the  judges  held,  or  it  was  supposed 
would  hold,  that  B.'s  title  was  better  than  C.'s,  though  B.'s 
deed  not  recorded,  and  his  grantor  remained  in  possession  even 
where  the  conveyance  absolute.  After  this  act,  a  deed  un- 
acknowledged and  unrecorded  was  good  against  all  persons, 
where  the  grantor  did  not  remain  in  actual  possession.  The 
act  gave  the  deed,  acknowledged  and  recorded,  of  a  grantor 
in  possession  a  preference  over  deeds  not  acknowledged  or 
recorded,  the  grantor  being  permitted  to  remain  in  possession  ; 
and  all  this  was  very  reasonable.  This  is  the  first  mention 
of  acknowledgment  as  a  requisite  in  a  deed  of  conveyance  in 
any  case.  In  England,  it  seems  to  have  been  necessary  before 
enrolment,  though  not  mentioned  in  the  Statute  of  Enrolment. 
It  is  implied  in  enrolment ;  for,  generally,  a  deed  could  not  be 
enrolled  till  acknowledgment. 

In  May,  1652,  an  important  alteration  in  the  law  was  made. 
The  preamble  states  the  mischief,  "  Clandestine  and  uncertain 
sales  and  titles."  The  remedy,  That  henceforth  no  sale  shall 
be  good  in  law,  except  the  same  be  done  by  deed  in  writing 
under  hand  and  seal,  and  delivered,  and  possession  given  upon 
part,  in  the  name  of  the  whole,  by  the  seller,  or  his  attorney 
authorized  under  hand  and  seal,  unless  the  deed  be  acknowl- 
edged and  recorded.  This  act  superseded  that  of  1640.  It 
requires  all  conveyances  of  land,  of  whatsoever  estate  Or 
interest,  to  be  by  deed,  attended  with  livery  and  seisin  in  deed 
or  in  fact,  or  acknowledgment  and  recording.  The  recording 
was  only  of  the  substance,  and  was  not  at  length. 

This  law  repealed  the  English,  if  it  had  been  before  con- 
sidered as  binding,  except  so  far  as  the  two  systems  agreed. 
It  was  evidently  the  intention  that  this  should  be  the  whole 
law  on  the  subject.     It  adopts  a  part  of  the  law  of  feoffments, 

(a)  And  so  the  law  coutinued  to  be,  as  far  as  the  grantor  and  his  heirs 
are  concerned. 


336  STRAFFORD. 


Thompson  v.  Bennet. 


and  rejects  the  rest.  In  future,  there  must,  in  all  cases,  be  a 
deed,  and  either  acknowledgment  and  recording,  or  a  certain 
livery,  not  an?/  livery,  and  seisin.  The  acknowledgment  and 
recording,  or  livery,  were  as  necessar}^  against  the  grantor  as 
against  others.  This  provision  has  the  merit  of  being  ex- 
tremely simple,  easy,  and  cheap,  and,  I  think,  complete  of 
itself. 

From  this  time,  1652  to  1697,  the  law  respecting  convey- 
ances does  not  appear  to  have  undergone  any  alteration. 
During  all  that  time  there  was  no  occasion  to  have  recourse 
to  any  English  law. 

In  1697,  an  act  for  registering  deeds  was  passed  in  Massa- 
chusetts, in  substance  the  same  as  their  present  law  and  ours, 
with  the  addition,  in  ours,  of  attestation.  It  is  not  stated  in 
express  terms  that  a  deed  with  the  formalities  required  by  the 
acts  of  1640  and  1652  shall  be  sufficient  to  pass  land,  as  is 
stated  in  the  act  of  1697,  and  present  laws.  This  was  con- 
sidered as  common  law,  and  thus  much  may,  perhaps,  during 
all  that  time,  have  been  borrowed  from  the  Statute  of  Uses  ; 
but  this  simple  principle  was  all  that  was  borrowed  and 
retained. 

It  is  observable  that  the  act  of  1697  is  declaratory  of  the 
law,  that  deeds  are  sufficient  to  pass  lands ;  it  requires  record- 
ing at  length.  If  the  statute  had  stopped  at  the  declaratory 
clause,  it  might  have  been  doubted  —  as  the  statute  of  1652, 
made  under  the  old  charter,  expired  with  that  charter  —  what 
portion  (if  any)  of  the  English  common  law  or  statute  law 
was  binding  in  the  province.  It  was,  therefore,  added,  that  no 
bargain,  sale,  or  other  conveyance  of  lands  shall  be  good  and 
effectual  in  law,  to  hold  the  same  against  any  but  the  grantor 
and  his  heirs,  unless  the  deed  be  acknowledged  and  recorded ; 
a  deed  without  acknowledgment  and  recording  is  effectual  to 
hold  lands  against  the  grantor  and  his  heirs.  In  the  first 
clause,  a  deed  which  is  sufficient  to  pass  and  hold  lands  in  all 
cases  is  described ;  but,  as  the  grantor  and  his  heirs  are  not 
within  the  mischief  of  non-acknowledgment  and  non-record- 
ing, they  are,  therefore,  excepted  out  of  the  general  require- 
ment.    Such  a  deed  as  that  described  in  the  first  clause  shall 


NOVEMBER   TERM,  1814.  337 

Thompson  v.  Bennet. 

be  sufficient  to  pass  lands ;  no  other  shall  be  sufficient  to  hold 
the  lands,  except  in  the  cases  of  grantors  and  their  heirs  such 
deed,  though  not  acknowledged  or  recorded,  shall  he  sufficient. 
The  conveyance  is  not,  as  it  respects  them,  a  clandestine  or 
unceilain  one.  They  want  no  information  of  a  title  which 
they  or  their  ancestor  have  parted  with.  They  cannot  be 
defrauded  for  want  of  notice. 

This  act  of  1697  has,  therefore,  made  three  important  alter- 
ations in  the  law  which  prevailed  under  the  old  charter.  1st. 
It  requires  deeds  to  he  recorded  at  length.  2d.  It  dispenses 
with  acknowledgment  and  recording,  where  the  deed  is  used 
against  the  grantor  or  his  heirs.  3d.  It  repeals  the  common- 
law  conve^'ance  by  livery  and  seisin,  or  by  delivery  of  posses- 
sion. Livery  and  seisin  are  now  of  no  avail,  unless  it  may  be 
against  grantor  and  his  heirs  ;  though  I  think  it  unnecessary 
as  it  respects  them,  for  it  would  be  accompanied  with  such  a 
deed  as  the  statute  describes  to  pass  the  land  even  from  these, 
ar.d  such  deed  is  sufficient  without  the  livery  and  seisin. 

What  has  been  mentioned  is  the  Massachusetts  statute  of 
1697.  Though  New  Hampshire  was  separated  from  Massa- 
chusetts in  1679,  and,  we  are  informed,  made  a  code  of  laws 
for  themselves  soon  after  the  separation,  yet  no  trace  of  it  now 
remains.  After  the  most  diligent  search  I  have  not  been  able 
to  find  it.-^  It  is  very  certain  that  our  law,  till  1679,  was  the 
same  as  the  Massachusetts,  and  equally  clear  that  the  people 
of  New  Hampshire  were,  at  that  time,  much  attached  to  the 
Massachusetts  government  and  laws.  I  have  no  doubt,  and 
from  what  I  see  in  the  judicial  records  there  can  be  no  reason 
to  doubt,  that  our  statutes  were  copied  from  the  Massachu- 
setts. In  1701,  our  legislature  enacted  the  Massachusetts  act 
of  1697,  and  our  present  statute  differs  little  from  the  act  of 
1701.  The  preamble  to  the  Massacliusetts  act,  which  is  not 
copied  in  ours,  is,  Wiiereas  it  is  necessary,  to  prevent  fraud, 
uncertainty,  and  perjury,  in  the  transferring  of  real  estate,  that 
a  mode  thereof  should  be  established,  easy,  certain,  and  noto- 
rious. 

1  The  N.  II.  Code  of  KJTO-IGSO  is  now  printed  in  1  Provincial  Papers, 
382-408;  and  also  in  Vol.  8,  N.  H.  Hist.  Soc.  Pub. 

22 


338  STRAFFORD. 


Thompson  v.  Bennot. 


Our  statute  of  1791  *  contains  a  new  provision,  on  which 
the  (luestion  in  the  case  at  bar  arises,  that,  in  addition  to  the 
other  recpiisites  copied  from  the  old  statute,  "  the  deed  must 
be  signed  b}^  two  or  more  witnesses  ;  "  tliat  is,  executed  in  the 
presence  of  two  or  more  witnesses,  who  must  sign  their  names 
as  witnesses  of  the  execution. ^ 

Attestation  was  necessary,  as  we  are  informed,  by  the 
canon  law.  No  doubt  it  was  here  borrowed  immediately  from 
the  law  respecting  the  attestation  of  wills.  Blackstone  and 
Cruise  speak  of  attestation  as  a  requisite,  but  add,  it  is  neces- 
sary rather  for  preserving  the  evidence  than  for  constituting 
tlie  essence  of  the  deed.  In  another  place,  Blackstone  says, 
the  actual  subscription  of  the  witnesses  is  not  required  by 
law,  though  it  is  prudent  for  them  to  attest  the  execution. 
Wooddeson,  Sheppard,  and  Perkins  do  not  include  attestation 
among  the  requisites  of  a  deed  at  common  law  ;  they  mention 
only  writing,  sealing,  and,  in  most  cases,  signing  and  delivery. 
The  law  of  New  Plymouth  implies  that  there  must  be  at  least 
two  witnesses  to  a  deed  of  conveyance.  It  would  seem  that 
the  Connecticut  statute  requires  witnessing.  Barrington,  in 
his  Observations  on  the  Statutes,  says  that  the  witnesses  to  a 
deed  Avere  anciently  a  necessary  part  of  the  jury  which  was  to 
try  the  validity  of  the  instrument.     He  thinks  this  occasioned 

1  The  statute  of  Feb.  10,  1791,  enacts,  That  all  deeds  or  other  convey- 
ances of  any  lands,  tenements,  or  hereditaments,  lying  in  this  State, 
signed  and  sealed  by  the  party  granting  the  same,  having  good  and  lawful 
authority  thereunto,  and  signed  by  two  or  more  witnesses,  and  acknowl- 
edged by  such  grantor  or  grantors  before  a  justice  of  the  peace,  and 
recorded  at  length  in  the  registry  of  deeds  in  the  county  where  such  lands, 
tenements,  or  hereditaments  lie,  shall  be  valid  to  pass  the  same,  without 
any  other  act  or  ceremony  in  law  whatever;  and  no  deed  of  bargain  and 
sale,  mortgage,  or  other  conveyance,  in  fee-simple,  fee-tail,  or  for  term  of 
life,  or  any  lease  for  more  than  seven  years  from  the  making  thereof,  of 
any  lands,  tenements,  or  hereditaments  in  this  State,  shall  be  good  and 
effectual,  in  law,  to  hold  such  lands,  tenements,  or  hereditaments  against 
any  other  person  or  persons,  but  the  grantor  or  grantors,  and  tiieir  heirs 
only,  imless  the  deed  or  deeds  thereof  be  acknowledged  and  recorded  in 
manner  aforesaid. 

2  In  Forsalth  v.  Clark,  1850,  21  N.  H.  409,  it  was  held,  that  the  pro- 
vincial laws  in  force  in  1733  did  not  require  a  deed  to  be  witnessed. 


NOVEMBER   TERM,   1814.  339 

Thompson  v.  Bennet. 

the  necessity  of  attestation  by  two  witnesses,  which  he  con- 
siders as  a  troublesome  and  unnecessary  ceremony.  But  if 
attestation  were  not  necessary  at  common  law,  it  was  certainly 
usual  both  in  England  and  here,  and  our  statute  has  made  it 
essential.  And  notwithstanding  what  is  said  by  Barrington,  I 
think  it  has  its  use.  It  serves  to  identify  the  instrument ;  it 
gives  solemnity  to  the  transaction  ;  and  it  has  some  tendency 
to  protect  the  grantor  from  imposition,  and  from  being  suddenly 
entrapped. 

When  a  statute  requires  what  might  otherwise  be  considered 
as  circumstance,  —  a  mere  ceremony,  —  it  becomes  essential, 
and  must  be  observed.  Attestation  by  two  witnesses  is  made  by 
the  statute  as  necessary  to  a  deed  of  conveyance,  as  attesta- 
tion of  three  witnesses  to  a  will  of  lands,  and  as  necessary  as 
a  seal  to  a  deed  at  common  law.  The  instrument  cannot  be 
received  in  evidence  in  either  case  Without.  The  instrument 
without  attestation  is  not  a  deed  of  conveyance.  It  differs 
from  acknowledgment  and  recording ;  the  instrument  may  be 
a  deed  of  conveyance  without  these,  and  the  land  passes  with- 
out these,  though  these  are  necessary  to  its  operation  as  a 
conveyance  in  certain  cases.  But  the  land  does  not  pass 
without  a  seal,  nor  without  attestation,  delivery  of  the  deed, 
&c.  (a) 

I  conceive  it  to  be  clear  that  all  deeds  of  conveyance  must 
be  so  attested.  The  deeds  of  conveyance  sjijoken  of  in  both 
clauses  of  this  section  are  the  same  ;  must  have  the  same 
requisites,  ^.  e.  they  must  be  deeds  of  conveyance.  It  would 
be  absurd  to  su})pose  that,  though  the  first  clause  describes 
what  shall  be  the  requisites  of  a  deed  of  conveyance,  the 
second  clause,  speaking  of  a  deed  of  conveyance,  means  a 
different  instrument,  a  common-law  deed,  an  instrument  with 
other  and  different  requisites.  The  only  use  of  the  second 
clause  was  to  take  away,  or  repeal,  the  common-law  ceremony 
of  livery  and  seisin,  and  to  dispense   with  acknowledgment 

{a)  III  our  former  statutes  it  seems  implied  that  a  deed  of  conveyance 
must  be  witnessed.  Stat.  1701  speaks  of  proof  which  is  to  supply  the 
place  of  acknowledgment  by  the  oaths  of  two  of  the  witnesses  thereto 
subscribed. 


340  STRAFFORD. 


Thompson  v.  Bennet. 


and  recording  in  the  case  of  the  grantor  and  his  heirs.  There 
is  no  reason  why  attestation  should  not  be  equally  necessary 
to  pass  the  lands  as  to  hold  them  ;  as  necessary  where  acknowl- 
edgment and  recording  may  be  dispensed  with,  as  where  they 
must  be  observed  ;  equally  necessar}-  where  the  deed  is  to 
affect  the  grantor  and  his  heirs,  as  where  it  operates  on  others. 
Indeed,  the  reason  is  stronger  for  attestation  where  acknowl- 
edgment is  not  required  than  where  it  is  necessary.  In  such 
case,  a  person  might  lose  his  land  merely  on  proof  of  similarity 
of  handwriting.  It  is  of  the  nature  of  all  requisites  in  any 
instrument  that  injustice  should  sometimes  be  done  thereby. 
This  is  the  nature  of  laws  themselves.  Summum  jus  is  some- 
times summa  injuria. 

Some  observations  have  been  made  on  the  negative  clause 
of  the  statute  in  question,  with  an  intention  to  show  that,  in 
the  latter  clause,  the  word  "  deed  "  has  the  same  signification  as 
in  the  former  ;  that  it  means,  in  the  latter,  the  statute  deed  of 
conveyance,  the  requisites  of  which  had  been  just  enumerated  ; 
no  such  deed  shall  be  sufficient  to  hold  such  lands  against 
any  but  the  grantor  and  his  heirs,  unless  acknowledged  and  re- 
corded ;  against  them,  such  deed  shall  be  sufficient  to  hold  the 
lands.  If  the  word  "  deed,"  or  "  conveyance," —  and  they  signify 
the  same  thing  in  this  whole  section,  —  means  a  deed  at  common 
law,  not  attested,  then  the  first  clause  declares  that  a  deed 
attested,  &;c.,  acknowledged  and  recorded,  shall  be  valid  to 
pass  lands  ;  and  the  second,  that  a  deed  not  attested,  but  ac- 
knowledged and  recorded,  shall  be  sufficient  to  hold  the  same 
lands,  which  is  absurd  ;  and  equally  absurd  to  suppose  that 
the  same  word  is  used  in  one  [?]  sense,  when  applied  to  differ- 
ent persons,  when  there  is  nothing  in  the  case  which  requires 
any  such  violence  to  the  rules  of  interpretation.  There  is  no 
difficulty  in  arriving  at  the  true  sense  of  these  two  clauses, 
supposing  the  word  "  deed  "  to  be  used  in  the  same  sense  in  the 
latter  as  the  former,  i.  e.  a  writing,  signed,  sealed,  and  attested. 
It  was  well  understood  a  century  ago,  as  it  is  now,  that  the 
acknowledgment  and  recording  make  no  part  of  the  deed,  but 
the  attestation  does.  It  is  no  more  a  deed,  till  attested  by  two 
witnesses,  than  an  instrument,  purporting  to  be  a  will,  is  a 


NOVEMBER   TERM,   1814.  341 


Thompson  v.  Bennet 


will,  till  it  is  attested  by  three.  When  a  statute  requires  that 
an  instrument  shall  be  executed  in  the  presence  of  witnesses, 
it  does  not  become  such  instrument  merely  on  the  signature  of 
the  signer ;  there  must  be  the  attestation  of  the  witnesses. 
1  Cranch,  239-251.  When  attested,  the  execution  is  complete, 
and  not  before  ;  and  our  deed  of  conveyance  takes  effect  from 
the  making  ;  the  land  then  passes.  The  acknowledgment  is  a 
mere  warrant  for  the  recording  and  aids  in  the  proof  or  authen- 
tication of  the  transaction  ;  and  the  recording  is  principally  for 
the  purpose  of  giving  notice.  Wliere  the  grantee  neglects  to 
record  his  deed,  it  shall  not,  in  certain  cases,  and  under  cer- 
tain circumstances,  be  effectual  to  hold  the  lands  which  had 
passed  by  it.  One  use  of  the  second  clause  was  to  lay  down  a 
rule  by  which  it  may  be  known  when  recording  is  essentially 
necessary  to  enable  a  grantee  to  hold  lands.  As  it  respects 
the  grantor  and  his  heirs,  the  statute  rule  is  that  recording  is 
not  necessary.  Recording  is  useless  to  them.  They  cannot 
suffer  for  want  of  notice.  But,  where  others  do  suffer,  or  may 
be  supposed  to  suffer,  for  want  of  recording,  there  the  statute 
rule  is  that  recording  is  essential  to  enable  grantee,  not  to 
take,  but  to  hold  against  such.  The  deed,  act,  or  instrument, 
necessary  to  pass  lands,  must  be  the  same,  as  it  respects  all 
persons.  On  the  execution  of  the  deed  as  the  statute  requires, 
the  land  passes,  and  there  is  the  same,  if  not  greater,  reason 
why  it  should  not  [?]  be  signed,  sealed,  and  executed  in  the 
presence  of  witnesses  in  the  one  case  as  well  as  the  other  ;  the 
statute  has  made  no  such  difference.  But  the  circumstances 
or  requisites  to  be  observed,  to  enable  grantee  to  hold  the  land 
against  grantor  and  his  heirs,  and  against  other  persons,  may 
be  different,  and  call  for  different  provisions  and  regulations. 
These  other  persons  may  suffer  for  want  of  notice  that  the 
land  has  passed  from  grantor.  To  guard  them  against  any 
injury  from  this  ignorance,  the  law  declares  that  the  grantee, 
who  was  bound  to  give  the  requisite  notice  by  recording  his 
deed,  sliall  not  hold  the  land.  There  is  no  such  thing  as  a 
common-law  deed.  To  pass  lands,  the  deed  must  be  such  a 
one  as  the  statute  requires ;  it  must  have  all  the  requisites 
necessary  to  constitute  it  a  deed  of  conveyance  ;   and  it  must, 


342  STRAFFORD. 


Thompson  v.  Bennet. 


moreover,  be  followed  by  acknowledgment  and  recording  in 
certain  cases. 

An  opinion  luis  been  expressed,  in  the  course  of  tlie  obser- 
vations which  have  been  made,  that  the  first  settlers  of  New 
England  did  not  intend  to  adopt  the  Statute  of  Uses,  except 
so  far  as  regards  the  principle  that  lands  might  be  passed  by 
deed. 

Of  necessity,  the  English  modes  of  conveyance  must  be 
many  and  complicated.  The  alterations  of  property  must 
necessarily  introduce  new  modes  of  conveyance,  and  it  would 
be  natural  to  suppose  (if  we  did  not  know  the  fact  to  be  so) 
that  the  legislature  would  both  frame  new  modes  of  convey- 
ance, and  add  new  circumstances  to  those  which  custom  and 
use  had  gradually  introduced.  It  is,  indeed,  well  known  tluit 
much  of  the  law  of  conveyancing  now  in  force  in  England 
was  originally  the  offspring  of  fraud  and  evasion.  The 
doctrine  of  uses  sprung  from  a  desire  to  evade  the  restraints 
imposed  on  alienation,  and  especially  to  religious  corporations  ; 
to  elude  the  common-law  mode  of  conveyance,  which  was 
open  and  notorious ;  and  to  escape  from  the  feudal  burdens. 
The  number  of  English  conveyances  is,  therefore,  easily  ac- 
counted for,  and  that  there  should  be  different  forms  ada[)ted 
to  different  cases.  They  grew  out  of  the  exigencies  of  the 
occasion.  Their  uncertainty  and  confusion  has  a  double 
source,  —  ignorance  and  ingenuity  ;  ignorance  of  the  law  in 
some,  and  ingenuity  to  evade  it  in  others.  At  the  first  settle- 
ment of  this  country,  a  deed,  as  a  mode  of  conveyance,  was  in 
general  use  in  England.  It  would  be  believing  against  evi- 
dence to  suppose  that  the  first  settlers  of  Massachusetts 
were  well  skilled,  or  even  tolerable  proficients,  in  that  branch 
of  English  law  called  conveyancing.  Blackstone  speaks  of 
the  intricate  nicety  of  uses,  as  still  prevailing  in  English  con- 
veyances, and  of  the  ingenuity  of  an  able  artist  as  necessary 
to  mould  the  doctrine  of  uses  to  useful  purposes.  The  occa- 
sion for  many  English  forms  did  not  exist  here  at  all.  How 
to  apply  such  as  might  be  a})plicable  was  a  branch  of  knowl- 
edge, I  niay  say,  wanting  in  all.     Let  any  one,  for  a  moment, 


NOVEMBER   TERM,   1814.  343 

Tliompson  v.  Bennet. 

advert  to  the  several  modes  by  which  a  title  to  real  estate 
niiglit  be  transferred  from  one  man  to  another,  according  to 
the  different  interests  or  estates  of  the  seller,  and  those  in- 
tended to  be  vested  in  the  purchaser,  and  he  will  at  once  feel 
the  force  of  this  observation.  It  would  consume  too  much 
time  even  to  draw  the  outline  of  English  conveyances. 
Blackstone  enumerates  thirteen  species,  and  each  of  these 
was  applicable  to  a  variety  of  cases.  It  would  require  a 
volume  to  enumerate  the  cases  to  which  each  of  these  modes 
might  be  ai)plied.  A  feoffment  was,  perhaps,  the  most  sim- 
ple ;  but  what  was  a  good  livery  and  seisin  was  oftentimes 
a  question  of  no  small  difficulty,  and  a  mistake  here  was  fatal. 
Terms  of  years,  however  long,  say  one  thousand,  miglit  be 
created  and  transferred  by  deed,  without  witnesses,  acknowl- 
edgment, or  recording,  and  without  any  entry  on  the  land 
or  delivery  of  possession.  Estates  ot  inheritance  in  many 
eases,  and  any  less  estates,  might  be  passed  in  the  same  man- 
ner. Some  deeds  required  a  pecuniary  consideration  to 
render  the  conve3'anc6  valid  ;  in  others,  no  consideration  was 
necessary;  while  in  a  third  class  the  consideration  must  be  — 
I  do  not  say  may  be,  but  must  be  —  blood  or  marriage.  The 
local  situation  (^f  the  land,  and  the  quantity,  or  estate  of  the 
seller  or  intended  purchaser,  were  material  circumstances  in 
judging  of  the  proper  form  of  conveyance,  and,  in  case  of 
bargain  and  sale  (which  nuist  be  by  indenture),  whether 
necessary  to  be  enrolled  or  not.  The  presence  of  witnesses 
at  a  transfer  of  so  much  importance  was  in  no  case  required. 
The;  acknowledgment  seems  to  have  depended,  for  its  authority, 
merely  on  regulations  made  by  the  several  courts.  Recording 
or  enrolment  (though  property  of  every  kind  might  be  trans- 
ferred without  it),  when  it  took  place,  might  be  in  any  of  five 
different  places,  at  the  election  of  the  party.  Before  1677, 
most  things  [?]  might  be  created  and  transferred  by  parol. 
Some  conveyances  were  at  common  law.  Others  derived 
their  force  and  effect,  —  some  altogether  and  others  in  part, — 
from  the  Statute  of  Uses.  Some  were  original.  Others  pre- 
supposed a  former  conveyance.  Some  were  calculated  to 
transfer  the  land,  the  actual  possession  ;  and   were  available 


344  STRAFFORD. 


Thompson  v.  Bennet. 


only  where  the  seller  was  in  the  actual  occupation.  Others 
could  convey  only  a  right  or  imperfect  title.  Some  could 
convey  no  more  than  the  seller  could  lawfully  transfer. 
Others  could  transfer  that  which  he  had  no  lawful  right  to 
convey.  In  the  conveyances  under  the  Statute  of  Uses,  the 
whole  intricate,  nice,  and  ingenious  doctrine  of  uses  was 
necessary  to  be  known. 

This  slight  sketch  is  enough  to  make  us  thankful  that  the 
first  settlers  of  this  country  had  the  prudence  to  reject  the 
whole  €71  masse.  What  paii  should  they  have  adopted,  what 
part  did  they  adopt,  of  these  many  and  ever-varying  forms  ? 
If  they  had  concluded  to  adopt  the  English  law  of  convey- 
ancing, it  would  have  been  necessary  immediately  to  have 
imported  a  body  of  convej'ancers.  Instead  of  this  course, 
they  contented  themselves  with  one  simple  form,  and  got 
along  as  well  as  they  could  without  any  professional  man 
at  all. 

Let  the  English  forms  be  contrasted  with  one  every  way 
suitable  to  our  wants,  the  state  of  our  country,  and  the  degree 
of  law-knowledge  possessed  by  those  who  must  necessarily 
make  conveyances  here.  There  are  few  owners  of  real  prop- 
erty who  may  not  be  presumed  to  know  the  propeity  or 
estate  they  possess,  and  what  they  intend  to  convey.  In 
England,  the  difficulty  begins  at  the  next  step.  Who  can  tell 
what  form  of  convej'ance  will  best  effectuate  the  intention  of 
the  parties?  When  the  best  form  is  chosen,  it  requires  no 
small  skill  to  observe  the  necessary  precision.  Now  all  these 
difficulties  arise,  not  from  any  intrinsic  difficulty  in  the  sub- 
ject, but  from  the  multitude  and  variety  of  forms,  which 
honesty  and  knowledge,  fraud  and  ingenuity,  have  contrived 
in  the  science  of  alienation.  The  course  adopted  in  the 
earliest  times  here,  how  different!  The  instrument  of  con- 
veyance must  be  a  deed,  i.  e.  a  writing  sealed  and  deliv- 
ered ;  and,  to  give  it  more  solemnity,  and  to  protect  the 
grantor  from  imposition,  it  must  now  be  attested  by  two 
witnesses  at  least,  (a)     Land  passes  as  well  without  as  with 

(a)  This  cannot  be  considered  as  imposing  any  hardship,  for  it  was 
always  the  usage. 


NOVEMBER   TERM,   1814.  345 

Thompson  v.  Bennet. 

consideration.  The  form  of  the  instrument  is  no  way  material. 
Technical  words  are  not,  in  general,  necessary.  Our  convey- 
ances may  be  in  the  simple  form  used  in  ancient  feoffments  ; 
the  execution  of  tlie  deed  and  the  recording  are  in  the  place 
of  livery  and  seisin.  The  transaction  is  solemn  and  certain  ; 
there  must  be  writing,  sealing,  delivery,  attestation,  acknowl- 
edgment before  a  magistrate ;  for  the  benefit  of  the  public, 
the  transaction  must  be  notorious,  and  the  records  at  once 
preserve  the  evidence  and  give  publicity.  All  estates  of 
every  name  and  nature,  corporeal  and  incorporeal,  pass  by 
deed.  («)  It  is  immaterial  whether  the  estate  be  in  posses- 
sion, remainder,  or  reversion,  holden  with  others  or  in 
severalty.  A  quitclaim  passes  the  land  or  the  right,  as  the 
case  may  be.  I  cannot  but  think  that  this  was  intended  as 
a  substitute  for  all  the  English  modes  and  forms  ;  and  that 
it  operates  by  force  of  our  statute.  It  is  true,  a  deed  may  be 
so  framed,  if  the  parties  so  please,  as  to  refer,  in  construction, 
to  the  Statute  of  Uses.     But  I  forbear  to  enlarcje. 

If  the  historical  view  which  I  have  endeavored  to  give  of 
our  law  of  conveyance  and  the  exposition  of  the  statute  be 
at  all  correct,  I  think  we  are  furnished  with  an  easy  answer 
to  the  question,  whether  the  deed  from  Bennet  to  Thompson 
was  admissible  in  evidence  ;  and  it  will,  on  these  principles,  be 
easy  to  answer  all  the  objections  which  have  been  urged  in, 
favor  of  the  admission.  Though  I  have  gone  over  a  good  deal 
of  ground,  I  have  aimed  at  a  direct  course,  and  have  not  suf- 
fered myself  to  be  diverted  from  it  to  discuss  a  vast  number 
of  questions  which  have  lain  in  my  way.  The  principles  of 
English  law  to  which  I  have  alluded  are,  I  believe,  all  abun- 
dantly clear.  As  to  what  relates  to  our  statutes,  usages,  &c., 
unfortunately  we  have  no  authorities  to  appeal  to. 

To  support  this  action,  plaintiff  must  show  title  ;  i.e.,  that 
the  land  passed  to  and  became  vested  in  him.  It  is  not  suffi- 
cient  to  show   a   contract  by  which    the  true  owner  became 

(a)  And  all  deeds  must  be  executed  the  same  way,  aud  attended  with 
the  same  solemnities. 


346  STRAFFORD. 


Thompson  v.  Bennet. 


entitled  to  a  conveyance  ;  he  must  show  a  conveyance,  (a) 
Not  sufficient  that  he  may  have  an  equitable  title  ;  hu  must 
have  a  legal  one.  If  he  has  advanced  money  in  ex[)ectation 
of  a  conveyance,  and  none  made,  he  has  his  action  of  money 
had  and  received,  or  on  the  contract  ;  (i)  if  in  expectation  of 
m.  [mortgage  ?],  the  m.  debt  is  still  undischarged.  He  pre- 
tends to  no  title  except  what  the  deed  gives.  He  has  offered 
no  evidence,  made  no  case,  except  what  the  deed  makes  for 
him.  He  had  no  prior  possession,  and  admits  defendant  in 
possession,  wliere  lie  may  remain  till  plaintiff  shows  title.  If 
plaintiff  has  no  legal  title,  defendant  is  safe.  There  may  be 
cases  where  imperfect  title —  mere  j)ossession  —  would  be  good 
against  a  defendant;  but  no  such  case  is  made  here.  Plaintiff 
shows  this  deed,  for  all  and  every  tiling,  as  a  conveyance.  If 
plaintiff  had  possession,  and  defendant  sued  him  on  the  ground 
that  the  deed  was  invalid,  especially  if  all  fair,  and  possession 
delivered  or  taken  under  it,  Thompson  might  have  good  defence. 
5  Binn.  129.  But  the  question  now  is.  Did  the  land  demanded 
pass  by  this  deed  ?  The  answer  is.  This  is  not  a  deed  of  con- 
veyance under  our  statute,  because  not  executed  as  the  statute 
requires ;  all  statute  deeds  of  conveyance  must  be  attested  by 
two  witnesses  at  least. 

But  it  is  said  the  statute  only  mentions  affirmatively  that 
certain  deeds  are  deeds  of  conveyance,  but  there  are  no  nega- 
tive words.  This  has  been  already  noticed.  No  conveyance 
is  good  unless  the  deed  be  acknowledged  and  recorded,  except 
in  the  case  of  grantors.  "  The  deed  "  means  such  a  deed  as 
is  mentioned  in  the  first  clause,  and  there  must  be  such  deed 
to  pass  the  land  at  all.  It  would  be  absurd  to  say  that  this 
deed  passed  the  land  in  this  case  and  did  not  pass  it  in  every 
other  case.  The  same  land  cannot  piiss  and  not  pass  by  the 
same  deed.  It  may  pass,  and  yet  not  be  holden.  Now  sup- 
pose, after  this  judgment  in  favor  of  Thompson,  that  the  land 
passed   by  this   deed,   he    should   be  obliged  to    maintain   an 

(a)  Sed  vide  2  Binn.  129,  Campbell  v.  Spencer  (this  was  an  act  of 
assembly). 

(6)  G  Manuscript  Reports,  Bothel  v.  Bund//,  15,  21;  0  T.  11.  GOG; 
1  Dall.  428. 


NOVEMBER   TERM,   1814.  347 

Thompson  v.  Bennet. 

action  against  a  disseisor  of  Bennet,  or  one  claiming  by  extent 
as  Bennet's  creditor ;  could  it  then  be  holden  that  the  land 
did  not  pass? 

The  attestation  is  just  as  necessary  as  if  Thompson  claimed 
by  will  ;  or  as  necessary  as  a  seal.     (5  Mass.  459,  400.) 

It  is  said,  if  this  is  to  be  considered  as  a  statute  deed,  it  u 
only  defective,  and  chancery  would  relieve  ;  and  if  chancery 
would  compel  a  new  and  perfect  execution,  this  court  may 
consider  it  as  done.  Answer:  Chancery  could  not  relieve  in 
tliis  case.  When  a  statute  requires  certain  things  to  be  done, 
courts  of  equity  are  bound  as  much  as  courts  of  law.  2  Fonbl. 
49,  n.  c  ;  3  Bro.  Ch.  C.  571.  Courts  of  equity  sometimes  pre- 
sume livery  and  seisin  from  possession.  Here,  Thompson  has 
had  no  possession. 

It  has  been  further  contended  that  this,  though  not  a  deed 
of  conveyance  within  the  statute,  estops  defendant  from 
claiming  the  land. 

Answer  :  The  doctrine  of  estoppel  does  not  apply.  2 
Blackst.  295.  This  is  a  deed-poll,  and  therefore  no  estoppel. 
2  Har.  &  M.  193.  Here  is  no  estoppel  by  the  covenants  ;  ^ 
for,  if  the  land  did  not  pass  and  could  not  pass,  though  seller 
had  title,  the  covenants  are  inoperative  ;  no  deed,  no  cove- 
nants. Shep.  223.  Bennet  is  not  estopped  from  saying  that 
this  is  not  a  deed  of  conveyance  ;  and  that  is  all  that  is  neces- 
sary for  him  to  say  in  answer  to  this  action.  Suppose  it  had 
no  seal.  In  this  case  he  may  admit  it  is  his  deed,  and  deny 
that  it  passed  the  land. 

But  it  is  contended  that  this  instrument  is  a  deed  at  common 
law.  Tiie  party  must  go  farther,  and  maintain  that  it  passed 
the  land.     It  is  to  be  observed  that  the  common  law  does  not 

1  Sustained  by  Woods,  J.,  in  Rundlett  v.  Ilodgman,  1844,  16  N.  H. 
239,  240;  Lessee  of  Patterson  v.  Pea.se,  1831,  5  Ohio  (Hammond)  190; 
Wallace's  Lessee  v.  Miner,  1834,  6  Ohio  (Hammond),  366;  Doe  d. 
Stevens  v.  Hays,  1848,  1  Ind.  (Carter)  247;  Connor  v.  McMurrai/,  1861, 
2  Allen,  202;  Doi/le  v.  Coburn,  1863,  6  Allen,  71  (but  see  Foss  v.  Slradhn, 
1860,  42  N.  H.  40). 

See  also  Doe  r/.  Chandler  v.  Ford,  1835,  3  Ad.  &  E.  649;  Atkinson  v. 
Bell,  1857,  18  Tex.  474,  479;  Dougal  v.  Fryer,  1831,  3  Mo.  29. 


348  STRAFFORD. 


Thompson  v.  Bennet. 


distinguish  between  the  grantor  and  others  ;  a  deed  that  passes 
the  land  as  to  one  passes  it  as  to  all  persons. 

What  common  law  is  intended  ? 

If  the  English,  I  know  of  none  such.  It  is  not  a  feoffment, 
for  no  livery.  It  is  not  a  lease  nor  a  release,  because  Bennet 
was  in  possession,  &c. 

If  our  common  law  be  intended,  show  us  the  evidence  of 
this.  I  find  none.  It  is  said  we  adopted  the  English  Statute 
of  Uses.  Where  is  the  evidence  of  it?  If  we  did,  it  was  a 
most  imprudent  act,  and  certainly  a  leap  in  the  dark.  We  did 
not  adopt  it;  and,  if  we  did,  it  was  repealed  by  statutes  1652 
and  1701,  and  present  statute.  But,  if  we  adopted  the  Statute 
of  Uses,  we  must  have  taken  the  Statute  of  Enrolments,  which 
jmssed  at  the  same  session,  and  is  always  to  be  taken  as  part  of 
the  Statute  of  Uses,  —  and  a  most  necessary  part,  a  si7ie  qnd 
non.  But,  if  we  adopted  the  Statute  of  Uses  without  the 
Statute  of  Enrolment,  (a)  this  is  not  within  it.  It  is  essential 
that  it  should  be  an  indenture.  This  is  a  deed-poll.  2  Blackst. 
338;  Shep.  222;  3  Blackst.  336;  Paca  v.  Forwood,  2  Har. 
&  M.  175.  It  is  not  enrolled  as  the  statute  requires.  The 
doctrine  seems  to  be  that  we  adopted  just  so  much  of  the  Eng- 
lish law  as  is  necessary  to  make  out  this  case.  The  truth  is, 
we  just  borrowed  the  principle  that  land  might  pass  by  deed, 
and  reserved  to  ourselves  the  right  of  adding  requisites  to  the 
deed,  and  circumstances  of  solemnity  and  notoriety,  acknowl- 
edgment, and  recording,  all  in  our  own  way. 

It  has  been  said  this  is  a  covenant  to  stand  seised.  It  is  not ; 
for  there  it  is  essential  that  the  consideration  should  be  blood 
or  marriage,  and  this  is  neither.  2  Blackst.  337  ;  Sullivan, 
89 ;  2  Har.  &  M.  198. 

In  short,  admitting  this  deed  as  a  valid  conveyance  would 
repeal  our  laws  for  at  least  one  hundred  and  sixty  years 
past. 

When  the  cause  was  first  opened  1  hoped  to  be  able  to 
find  principles  upon  which  the  deed  could  be  supported. 
I  have  spared  no  pains  to  find  such  principles,  but  have  met 

(a)   As  has  been  holden  in  some  States.     Qu.  N.  Y. 


NOVEMBER   TERM,   1814.  349 

Thompson  v.  Bennet. 

with  no  success.     I  am  now  convinced  that  there  are  no  such 
principles. 

The  verdict  must  he  set  aside,  and  a  general  verdict  entered 
for  defendant.^ 

^  This  decision  was  overruled  in  French  v.  French,  1825,  3  N.  H.  234, 
■where  it  was  held  that  a  deed  with  only  one  witness,  though  not  good 
under  the  statute  of  1791,  might  yet  operate  as  a  conveyance  under  the 
Statute  of  Uses,  and  so  pass  the  estate.  As  the  decision  in  French  v. 
French  has  now  been  acquiesced  in  for  more  than  half  a  century,  and  as 
there  are  titles  dependent  upon  it,  it  will,  of  course,  be  adhered  to,  not- 
withstanding any  doubt  of  its  intrinsic  correctness. 

The  statute  was  changed  in  1829,  so  that  a  deed  without  two  witnesses 
would  not  pass  the  land,  even  between  the  parties.  Stone  v.  Ashley,  1842, 
13  N.  II.  38;  Rundlelt  v.  llodc/man,  1844,  lU  N.  H.  239. 

By  the  Revised  Statutes  of  1842,  "the  law  of  1791  was  substantially 
restored;"  and  accordingly  a  deed  with  only  one  witness,  executed  since 
the  Revised  Statutes,  is  held  good  as  against  the  grantor  and  those  having 
notice.  Hastings  v.  Cutler,  1852,  24  N.  H.  481;  Sanborn  v.  Robinson, 
1873,  54  N.  H.  239. 

In  Barker  v.  Bean,  1852,  25  N.  II.  412,  it  was  held  that  an  assignment 
of  real  estate  for  the  benefit  of  creditors,  executed  in  1850,  attested  by 
only  one  witness,  was  invalid  as  against  an  attaching  creditor  with  notice. 
Portions  of  the  opinion  are  somewhat  misleading;  but  the  decision  is 
sustainable  upon  the  ground  that  the  assignment  must  be  so  executed  as 
to  be  effectual  against  all  the  creditors.  If  its  validity  as  to  each  creditor 
could  be  allowed  to  depend  upon  the  question  whether  such  creditor  had 
received  actual  notice,  it  might  be  good  as  to  part  of  the  creditors,  and 
invalid  as  against  the  rest;  thus  permitting  the  inequality  of  distribution 
which  the  assignment  statute  was  intended  to  prevent. 

Among  the  cases  which  recognize  the  Statute  of  Uses  as  being  in  force 
in  this  State  are  Tappan's  Appeal,  1875,  55  N.  H.  317;  Hulchins  v. 
Heywood,  1871,  50  N.  H.  491;   Upham  v.  Varney,  1844,  15  N.  H.  462. 


350  CHESHIRE. 


Town  of  Chesterfield  v.  Hart. 


CHESHIRE,  DECEMBER   TERM,    1814. 


Town  of  Chesterfield  v.  Sally  Hart. 

A  husband  is  not  liable,  under  the  pauper  statutes,  for  the  support  of  his  wife's 
grandmother,  although  his  wife,  at  marriage,  was  possessed  of  suHicient  prop- 
erty, which  he  now  holds  in  her  right. 

An  infant,  of  sufficient  property,  is  liable,  under  the  pauper  statutes,  for  the 
support  of  her  grandmother. 

This  was  an  action  of  assumpsit,  to  recover  the  moneys 
expended  by  the  phiintiffs  for  the  maintenance  of  Mary  Hart, 
grandmother  of  the  defendant,  under  §  7  of  the  act  of 
Feb.  15,  1791,  for  the  punishment  of  idle  and  disorderly 
persons  and  for  the  support  and  mainten;ince  of  the  poor. 
The  parties  agreed  on  a  statement  of  facts,  on  which  two 
questions  only  were  submitted. 

1.  Whether  the  defendant  was  liable,  she  [thougli  having 
sufficient  property]  being  under  the  age  of  twenty-one  when 
the  relief  was  administered  and  the  expense  incurred,  and 
being  still  a  minor. 

And,  2.  Whether  Phinehas  Fisk  and  Mary  his  wife,  living 
in  this  county,  are  also  liable ;  the  said  Mary  (Mrs.  Fisk) 
being  also  a  granddaughter  of  the  pauper,  of  sufficient  abil- 
ity when  she  married,  which  was  before  tlie  moneys  now  sued 
for  were  expended  ;  and  the  husband  now  holding  property, 
sufficient  for  the  maintenance  of  the  pauper,  in  right  of  his 
wife. 

In  case  Fisk  and  wife  arc  liable,  then  it  was  agreed  that 
judgment  should  be  against  the  defendant,  if  at  all,  for  one- 
half,  only,  of  the  moneys  expended.  If  defendant  not  liable, 
then  a  nonsuit  to  be  entered. 

PJiineas  Handerson,  for  plaintiffs. 
G-eo.  B.  Upham^  for  defendant. 


DECEMBER  TERM,  1814.  351 

Town  of  Chesterfield  v.  Hart. 

Smith,  C.  J.     The  second  question  is  easily  di.sposed  of. 

By  the  Englisli  statute  of  43  Elizal^eth,  the  word  "  grand- 
children "  is  omitted,  and  it  seems  not  judicially  determined 
whether  the  word  "  children  "  extends  to  them.  3  Burn,  5ti3. 
In  respect  to  "  father,"  "  mother,"  &c.,  the  language  of  the 
English  statute  and  our  own  is  alike,  and  no  doubt  the  same 
construction  should  be  put  on  ours  which,  at  the  time  of  enact- 
ing our  statute,  had  been  put  on  the  English.  At  first  it  was 
holden  tliat,  after  the  death  of  the  wife,  who  was  liable  for 
maintenance  of  her  poor  relation,  the  husband  was  not  liable  ; 
but,  during  the  marriage,  he  was.  It  was  considered  as  a 
debt  of  hers  when  single,  which  extends  to  charge  the  hus- 
band ;  but,  at  the  death  of  the  wife,  the  relation  being  dis- 
solved, the  husband  is  under  no  further  obligation.  3  Burn, 
562,  563  ;  1  Blackst.  448.  It  seems,  in  some  cases,  to  have  been 
determined,  that,  where  the  husband  received  an  estate  with 
his  wife  in  marriage,  he  Avas  chargeable  in  respect  of  such 
estate.  3  Burn,  562.  But  in  TJie  King  v.  3Iunde?i,  5  Geo.  I., 
reported  1  Strange,  290  ;  3  Burn,  563,  it  was  determined  that 
the  husband  was  not  obliged  to  maintain  his  wife's  mother, 
though  he  had  a  good  fortune  with  his  wife.  By  the  law  of 
nature  the  child  is  bound  to  maintain  his  own  parents  ;  the 
statute  was  made  to  enforce  this  obligation,  and  extends  no 
farther  than  the  law  of  nature  went  before.  The  King  v. 
Benoier,  2  Ld.  Raym.  1454,  was  in  13  Geo.  I.,  eight  years 
afterwards,  and  was  decided  the  same  way.^  The  circum- 
stance of  Mvinden's  having  had  a  fortune  with  his  wife 
does  not  seem  to  have  been  considered  as  affecting  his  lia- 
bility, (a)  The  King  v.  Munden  was  recognized  to  be  law  in 
Tubbs   and  others  v.   Harrison    and   another,  4  T.  R.  118.     It 

(a)  Indeed,  it  does  not  affect  the  liability  of  the  husband  on  account 
of  the  wife,  at  law,  in  any  case.  If  the  wife  be  indebted  before  marriage, 
the  husband  is  bound,  afterwards,  to  pay  the  debt,  for  he  has  adopted  her 
and  her  circumstances  together.  3  Mod.  186;  1  Blackst.  443.  But, 
though  he  has  had  a  great  fortune  with  his  wife,  if  she  dies  before  him, 
he  is  not  liable  to  pay  her  debts  contracted  before  marriage,  either  in  law 
or  equity.     1  P.  Wms.  4GS ;   1  Blackst.  443  (u.  18). 

^  The  point  decided  was  that  a  father-in-law  is  not  obliged  to  maintaia 
hi3  daughter-in-law. 


352  CHESHIRE. 


Town  of  Chesterfield  v.  Hart. 


appears  that  the  wife  was  alive  at  the  time  the  order  was 
made  on  the  husband,  which  was  quashed.  The  Court,  in  the 
latter  case,  were  of  opinion  that  the  statute  only  extends  to 
natural  relations.     1  Blackst.  449,  n.  (2). 

It  is  conceived  that  this  construction  has  been  always  put 
on  the  statute  of  the  late  province,  and  on  the  present 
statute. 

If  it  had  been  intended  to  charge  the  husband  in  any  event, 
provision  for  the  purpose  would  have  been  made  in  the  revi- 
sion in  1791.     6  G.  Bacon,  379. 

The  first  question  is  a  more  difficult  one.  The  general 
doctrine  is,  that  infants  are  not  liable  on  any  contract  except 
for  necessaries  ;  and  that,  with  several  exceptions,  they  are 
liable  for  all  torts  committed  by  them.  The  support  of  a 
grandmother  can  hardly  be  considered  as  a  necessary  for  the 
grandchild,  (a)  In  England,  and  in  the  late  province,  the 
liability  of  relations  to  afford  relief  was  enforced,  not  in  a  suit 
at  law  or  equity,  but  by  an  order  of  the  sessions.  We  have 
no  reports  of  this  court ;  and  their  decisions  would  have  little 
authority,  if  we  had.  We  must  decide  this  question  upon 
principle. 

Blackstone  considers  the  obligation  of  a  relation  of  sufficient 
ability,  of  a  mother,  for  example,  to  maintain  her  child,  as  a 
debt,  which,  like  her  other  debts  dum  sola,  devolves  on  the 
husband,  so  far  at  least  as  to  make  him  liable  during  the 
coverture.  But  infancy  is  a  bar  to  all  actions  of  debt  or 
assumpsit,  except  for  necessaries.  Wherever  an  infant  can 
plead  non-assumpsit,  he  can  plead  infancy  ;  or,  rather,  he 
may  avail  himself  of  the  infancy  as  a  complete  defence,  ex- 
cept in  the  case  of  necessaries ;  certainly  where  the  cause  of 
action  does  not  arise  ex  delicto,  as  in  the  case  of  money  had 
and  received  for  embezzlement.  1  Esp.  Rep.  172 ;  s.  c. 
Peake's   Cases,    223. 

Is  the  present  case  an  exception  to  the  general  rule  ? 

The   present  action  is  assumpsit  on   the  implied  promise, 

(a)  Sed  vide  1  Strange,  168.  Infant  liable  for  necessaries  for  his 
■wife.  They  are  considered  as  necessaries  for  him.  3  G.  Bacon,  590.  He 
is  also  liable  to  an  action  for  the  nursing  of  his  lawful  child.  3  G.  Bacon, 
596;  1  Fonbl.  67,  n.  "y,"  S.  P. 


DECEMBER   TERM,  1814.  353 


Town  of  Chesterfield  v.  Hart. 


which  the  law  raises,  that  every  man  promises  to  perform 
all  the  duties  enjoined  on  him  by  statute.^  Still,  it  would 
seem  that  case  would  also  lie  ;  the  non-performance  of  the 
duty  being  considered  as  a  wrong  done  to  the  person  entitled 
to  demand  it.  But  this  will  not  help  the  matter ;  for  the  rule 
is,  that,  wherever  assumpsit  will  lie  and  infancy  would  be  a 
bar,  the  defendant  shall  not  be  deprived  of  the  bar  by  the 
election  of  the  plaintiff  to  sue  in  tort  instead  of  assumpsit. 
8  T.  R.  835, 

Let  us  see  the  ground  on  which  infants  are  excused  from 
performing  their  contracts.  It  is  because  they  are  supposed  to 
want  sufficient  understanding  to  make  contracts.  They  are 
not  holden  by  their  contracts,  because  they  are  likely  to  make 
improvident  contracts,  —  to  be  imposed  upon.  But  this  rea- 
soning does  not  apply  to  the  present  case.  The  law  has  made 
this  contract  for  them,  in  respect  of  their  obligation  by  the 
law  of  nature,  and  their  ability  on  the  score  of  property.  Both 
these  circumstances  apply  equally  to  infants  as  to  adults. 
They  are  no  more  liable  to  imposition  in  performing  this  duty 
than  adults  are.  They  have  nothing  to  do  but  to  pay.  They 
have  nothing  to  do  but  to  obey  the  law.  There  is  no  exception 
in  their  favor  in  the  statute.  It  is  holden  that  a  statute  may 
affect  their  rights,  and  they  are  bound  ;  e.g.  Statute  of  Limita- 
tions. An  infant  is  no  more  exempted  from  an  obligation 
imposed  by  statute  than  others.  A  statute  is  a  law,  and  in- 
fants are  bound  to  obey  the  law.  It  is  true,  in  favor  of  infants, 
it  is  held,  that  general  statutes  that  inflict  corporal  punishment 
do  not  extend  to  infants  ;  the  punishment  also  being  collateral 
to  the  offence.  See  3  G.  Bacon,  692 ;  1  Hawk.  c.  64,  §  35, 
semhle.  But  where  the  words  are  general,  and  the  punishment 
prescribed  by  the  statute,  infants  are  included  as  well  as 
others.  Jd.  It  seems  to  be  on  this  principle  —  that  the  infant 
cannot  be  injured  by  his  own  conduct  —  that  it  is  holden  that 
judicial  acts  ^one  by  him  in  a  court  of  record  regularly  bind 
him.  3  G.  Bacon,  596.  It  is  stated  by  Lord  Mansfield,  in 
Zouch  v.  Parsons,  3  Burr.  1801,  a  right  and  lawful  act  done  by 

1  Hillsborough  County  v.  Londonderry ,  1862,  43  N.  H.  451. 

23 


354  CHESHIRE. 


Town  of  Chesterfield  v.  Hart. 


an  infant  is  not  within  tlie  reason  of  the  privilege  of  infants,  (a) 
It  is  a  hiwful  act  for  an  infant  of  ability  to  support  parent  in 
want;  both  by  law  of  nature  and  statute.  When  done,  it  binds 
him.  If  she  paid,  could  not  recall.  Why?  Because  pay- 
ment was  a  lawful  act.  Ergo,  bound  to  pay.  She  could  not 
avoid  the  payment.  Why  ?  Because  bound  to  make  it. 
3  Burr.  1800;  6  G.  Bacon,  589. 

Semble,  a  lunatic  or  idiot  would  be  bound  in  this  case.  Why 
not  an  infant?  Neither  can  make  an  express  promise.  Both 
are  bound  to  obey  all  laws  as  far  as  property  is  concerned; 
the  infant  much  farther. 

An  infant  liable  for  rent  on  his  occupation  and  enjoyment ; 
so  for  a  fine,  the  infant  being  a  copyholder.     3  Burr.  1717. 

In  England,  relations  liable  to  maintain  each  other  are  taxed, 
assessed,  for  the  purpose,  by  the  sessions.  It  is  levied  as  other 
rates,  &c.  It  never  was  doubted  here  that  infants — that  is, 
their  estates  —  are  liable  to  taxes.  This  is  [in  effect]  a  tax  on  a 
particular  description  of  persons,  for  the  support  of  the  poor. 
This  was  formerly  the  case  [literally]  here.^  The  principle  is 
the  same  when  an  action  is  given.  Was  it  ever  supposed  that 
a  person  charged  to  be  the  reputed  father  of  a  bastard  child 
could  plead  infancy  ?  The  maintenance  in  that  case,  as  in  this, 
is  imposed  by  statute,  without  any  exception  in  favor  of  infants, 
and  yet  that  is  for  personal  misconduct.  It  may  be  laid  down  as 
a  rule,  that,  wherever  a  statute  imposes  a  burden  on  persons 
(and  especially,  as  here,  on  property),  infants  and  their  prop- 
erty are  liable.  Default!^ 

(a)  The  privilege  is  to  protect  infants  from  wrong.  Can  it  be  wrong 
in  an  infant  to  do  what  a  statute  has  declared  a  duty,  and  has  made  no 
exception   of   infants,    and  which,   when   done,   he   cannot   avoid?      See 

I  Fonbl.  71  a. 

^  Provincial  Statute  of  1719. 

2  I.  Non-liability  of  Husband. 

Husband  held  not  liable  for  support  of  wife's  ancestors,  in  Mack  v. 
Parsons,  178G,  Kirby,  155;  Nichols  v.  Sherman,  1792,  1  Root,  361; 
Commissioners  of  Poor  v.  Gansett,  1831,  2  Bailey,  320.  In  none  of 
these  cases  did  it  appear  that  he  received  any  property  by  his  wife.  See 
Silao  Newlown  v.  Danbury,   1821,   3  Conn.   553;  Johnson  v.  Ballard,  1857, 

II  Rich.  (S.  C.)  L.  178;  Anonymous,  3  N.  Y.  Leg.  Obs.  cited  in  4  Abb. 


DECEMBER   TERM,   1814.  355 

Town  of  Chesterfield  v.  Hart. 

N.  Y.  Dig.   623,  §  47;  Lawrencb,  J.,  in  Cooper  v.  Martin,  1803,  4  East, 
76,  84. 

Chancellor  Kent,  wliile  concedinj:?  that  the  liusband  is  not  liable, 
evidently  regrets  that  the  statute  was  not  so  framed  as  to  reach  him  when 
he  has  received  projjerty  through  the  wife.     2  Kent,  Com.  102. 

II.  Non-liabilily  of  Wife. 

The  agreed  case  submitted  the  question,  whether  Fisk  and  wife,  "  or 
either  of  them,"  were  liable.  The  non-liability  of  the  wife  seems  tacitly 
assumed  by  the  Court  (as  also  in  Commissioners  of  Poor  v.  Gansett,  ubi 
sup.) ;  perhaps  on  the  ground  that,  by  marriage,  she  had  parted  with  her 
ability  to  maintain.  See  2  Kent,  Com.  192;  Lawkknce,  J.,  in  Cooper  v. 
Mcuiin,  ubi  sup.  In  view  of  recent  legislation,  a  marriage  at  the  present 
time  might  not  have  this  effect. 

In  2  Kent,  Com.  192,  it  is  said  that,  if  the  wife  has  separate  property, 
'•  the  court  of  chancery  would,  undoubtedly,  in  a  proper  case,  make  an 
order,  charging  that  property  with  the  necessary  support  of  her  children 
and  parents." 

III.  Liability  of  Infant. 

As  to  the  fiction  by  which  assumpsit  is  maintained  against  persons 
legally  incapable  of  contracting,  see  the  very  able  opinion  of  Ladd,  J., 
in  Sceva  v.  True,  1873,  53  N.  H.  627,  630-633. 

In  Succession  of  Lyons,  1870,  22  La.  Ann.  627,  "alimony  "  was  allowed 
a  destitute  grandmother  from  the  estate  of  infant  grandchildren. 

As  to  whether  chancery  will  make  an  allowance  from  an  infant's  estate 
for  the  support  of  his  parents,  see  Zabriskie,  Chancellor,  in  McKnighCs 
Ex'rs  V.  Walsh,  1872,  23  N.  J.  Eq.  136,  143-145;  s.  C.  24  N.  J.  Eq.  498, 
505. 

"  It  must  be  regarded  as  settled,  that  there  is,  at  common  law,  no  legal 
obligation  to  support  a  parent."  Bell,  C.  J.,  in  Lebanon  v.  Griffin, 
1864,  45  N.  II.  558,  561.  Conversely,  it  was  held  in  Kelley  v.  Davis,  1870, 
49  N.  II.  187.  that  a  parent  is  under  no  legal  obligation,  independent  of 
statutory  law,  to  maintain  his  minor  child. 


356  CHESHIRE. 


Eldridge  v.  Bellows. 


Elisha  Eldridge,  Defendant  in  Review,  v.  Thomas  Bel- 
lows, Plaintiff  in  Review. 

There  can  be  no  demurrer  to  a  writ  of  review. 

If  tlie  general  issue  was  the  only  plea  in  the  original  action,  a  demurrer  to  the 

declaration  cannot  be  filed  on  review. 
In  an  action  by  bail  against  sheriff,  for  falsely  returning  7wn  est  as  to  principal, 

the  declaration  alleged  that  the  sheriff  "  could  have  taken  "  the  body  of  the 

debtor. 
Jleld,  that  this  did  not  state  a  good  ground  of  action,  and  that  it  would  be  held 

bad  upon  motion  in  arrest  of  judgment. 

The  orif^inal  action  was  case  against  the  defendant  Bel- 
lows, sheiiff  of  the  county  of  Cheshire,  for  an  alleged  false 
return  by  his  deputy,  Heaton. 

The  declaration  alleged  the  following  facts  :  — 
Henry  Phelps  obtained  a  writ  of  attachment,  from  N. 
Townsley,  Esq.,  against  Allen  Bidwell,  Nov.  7,  1805  ;  served 
by  Joseph  Currier,  constable,  Nov.  9,  1805,  on  body  of  Bid- 
well.  Plaintiff  [Eldridge]  became  bail  on  the  writ,  not  only 
for  Bid  well's  appearance,  [but]  that  he  should  abide  final 
judgment,  and  not  avoid.  Writ  returnable,  Dec.  7,  1805. 
Phelps,  at  C.  C.  P.,  September  Term,  1806,  Cheshire,  to 
which  court  the  action  came  by  appeal  from  the  judgment  of 
justice,  recovered  judgment  against  Bidwell  for  2  cents 
damages,  and  costs,  $27.60,  and  17  cents  for  execution  issued 
on  said  judgment.  Execution  issued  Oct.  3,  1806 ;  same  day 
delivered  to  Joseph  Heaton,  deputy  sheriff,  under  defendant 
Bellows,  to  be  served,  executed,  &c.  Heaton,  being  possessed 
of  the  execution,  ought,  according  to  the  precept  thereof,  to 
have  made  the  money  of  Bidwell's  goods,  &c.,  to  be  shown  by 
creditor,  and,  for  want  thereof,  to  have  taken  the  body  of  Bid- 
well.  Although  Heaton  could  have  taken  the  body  of  Bidwell, 
yet,  regardless  of  his  duty,  and  fraudulently  intending  to  de- 
ceive and  injure  the  plaintiff,  and  to  make  him  answerable  to 
the  creditor,  he  falsely  and  deceitfully  returned  7ion  est  inven- 
tus ;  by  reason  whereof,  Phelps,  first  Tuesday,  April,  1807,  sued 


DECEMBER   TERM,   1814.  351 


Eldridge  v.  Bellows. 


out  scire  facias  against  plaintiff  as  bail.  Writ  returned  to 
C.  C.  P.,  September  Term,  1807;  continued  to  April  Term, 
1808  ;  judgment  for  plaintiff,  Eldridge  [defendant  in  that  pro- 
cess] ;  appeal  entered  at  S.  C,  Cheshire,  May  Term,  1808, 
when  Phelps  had  judgment  against  plaintiff  for  $27.79,  dam- 
ages, and  costs,  $21.62,  and  25  cents  for  execution ;  by  reason 
whereof  plaintiff  compelled  to  pay  Phelps  $51.56,  and  divers 
otlier  sums  in  defence  of  the  suit.     Ad  damnum,  $200. 

In  the  writ  of  review,  Eldridge  is  summoned  to  answer  to 
Bellows  in  a  plea  of  review  of  an  action  of  trespass  (should  be 
trespass  on  the  case),  wherein  the  said  Eldridge  was  plaintiff, 
and  the  said  Bellows  defendant,  for  that  whereas  (here  recit- 
ing the  declaration  in  the  original  action,  substantially,  as 
given  above),  "  which  action  was  commenced  by  said  Elisha 
Eldridge,  against  the  said  Thomas  Bellows,  at  the  Court  of 
Common  Pleas  for  said  county  of  Cheshire,  September  Term, 
1809,  and  continued  to  April  Term,  1810,  when  judgment  was 
rendered  "  in  favor  of  Bellows,  from  which  Eldridge  appealed 
to  the  Superior  Court,  May  Term,  1811,  "  when  and  where 
the  appeal  was  entered,  and  judgment  was  rendered,  that  the 
said  Elisha  Eldridge  recover,  against  the  said  Thomas  Bellows, 
the  sum  of  $31.28,  damage,  and  costs  of  court,  taxed  at 
$36.55.  (a)  Which  judgment  of  our  said  Superior  Court  of 
Judicature  the  said  Bellows  says  is  wrong  and  erroneous,  and 
ought  to  be  reversed,  because  he  says  it  ought  to  have  been 
that  he  should  have  recovered  against  the  said  Eldridge  the 
costs  of  court,  and  that  he  is  damnified,  thereby,  the  sum  of 
$200.  Wherefore,  for  reversing  the  judgment  of  our  said 
Superior  Court  of  Judicature,  and  for  recovering  the  damages 
aforesaid,  and  costs,  and  his  own  costs,  the  said  Thomas  Bel- 
lows brings  this  suit." 

To  this  writ  of  review  there  is  a  general  demurrer,  and 
joinder  in  demurrer.^ 

(a)  In  dockets,  it  appears  that,  at  May,  1810,  S.  C,  verdict,  Heaton 
guilty,  S31.08.     Curia  advisare.     May  Terra,  1811,  judgment. 

1  Statement  compiled  from  Judge  Smith's  notes  and  a  copy  of  the  writ 
of  review. 


358  CHESHIRE. 


Eldridge  v.  Bellows. 


Smith,  C.  J.  This  action,  for  aught  that  appears,  is  review- 
able. The  judgment  was  on  verdict,  though  our  practice  is  not 
to  state  this  in  writ  of  review.  It  seems  it  ought  to  be  stated, 
to  give  the  Court  jurisdiction  by  way  of  review,  (a) 

The  statute  (regulating  process  and  trials  in  civil  causes, 
§  12,  p.  90)  enacts  that  "  such  actions,"  i.  e.  reviews,  "  shall  be 
tried  on  the  pleas  made  upon  the  former  trial  upon  record ; 
that  is,  in  this  case,  upon  the  plea  that  Heaton  is  not 
guilty,  (i)  If  this  is  to  be  considered  as  a  demurrer  to  the 
declaration,  then  there  are  two  pleas :  the  general  issue,  and  a 
demurrer.  Trying  the  demurrer  is  certainly  trying  the  action 
on  a  different  plea  from  that  on  record.  If,  in  this  case,  the 
parties  on  the  record  have  agreed  that  the  former  pleas  may 
be  waived,  and  a  demurrer  entered,  this  should  be  stated  in 
the  record.  The  demurrer  is  certainly  bad  without  it.  Per- 
haps even  then  it  might  [admit]  of  some  doubt  whether  the 
review  would  be  regularly  before  the  Court,  unless  an  issue  to 
the  country  had  been  joined  and  tried,  or  perhaps  judgment 
by  agreement,  instead  of  a  verdict.     6  Mass.  500. 

The  parties  may  now  agree  that  the  general  issue  shall  be 
considered  as  found  for  Eldridge,  and  then  the  original  de- 
fendant may  move  in  arrest  of  judgment  for  insufficiency  of 
the  declaration.  If  the  Court  give  judgment  on  the  demurrer, 
there  can  be  no  motion  in  arrest  of  judgment  for  any  excep- 
tion that  might  have  been  taken  on  arguing  the  demurrer. 
The  reason  is,  that  the  matter  of  law  having  been  already  set- 
tled by  the  solemn  determination  of  the  Court,  they  will  not 
afterwards  suffer  any  one  to  say  that  the  judgment  is  wrong. 
2  Tidd,  825  ;  1  Strange,  425.  (This  is  a  language  courts  have 
no  ear  to  hear.) 

The  true  course  is  to  set  aside  this  demurrer,  try  the  issue, 
or  the  parties  may  consent  that  a  verdict  be  entered  on  the 
issue,  and  defendant  may  move  in  arrest  of  judgment. 

(a)   This  review  was  commenced  within  three  years. 

(6)  Held,  in  5  Mass.  500,  that  there  must  be  one  issue  to  the  country. 
Then  any  other  issues  on  record  may  be  tried. 

A  review  is  a  judicial  writ.  There  may  be  a  plea  in  abatement;  and 
the  writ  may  be  amended.     9  Mass.  217. 


DECEMBER   TERM,   1814.  359 

Eldridge  v.  Bellows. 

It  [the  demurrer]  must  be  set  aside,  because,  in  this  case, 
there  can  be  no  demurrer,  —  none  to  writ  of  review,  —  for  two 
reasons. 

1st.  Because  there  can  be  no  demurrer  to  any  writ.  From 
the  nature  of  demurrer,  it  must  be  to  the  decLaratioii.  De- 
murrer admits  the  facts  stated  in  the  declaration.  The  writ 
is  not  before  the  Court  on  demurrer.  Defects  in  the  writ  can 
only  be  taken  advantage  of  in  abatement,  or  motion  to  the 
Court  to  quash. 

2d.  No  demurrer  to  the  declaration  in  writ  of  review,  unless 
there  is  also  an  issue  to  the  country  ;  and  both  do  not  lie 
where  there  is  but  one  count.  And,  in  this  case,  there  can 
be  none  put  in  on  the  review,  because  this  would  be  trying  the 
cause  on  a  different  plea  from  that  on  which  it  was  tried 
before  ;  certainl}-  not,  unless  by  consent,  or  on  leave  obtained, 
if  such  can  be  granted.  But,  in  this  case,  the  party  may  have 
all  the  advantage  he  wishes  in  arrest  of  judgment. 

Supposing  a  demurrer,  or  motion  in  arrest  of  judgment 
made  ;  is  the  declaration  sufficient  to  warrant  a  recovery  ? 

Where  the  sheriff  is  guilty  of  neglect  of  dut}',  in  not  arrest- 
ing when  he  might  arrest,  the  creditor  may  maintain  an  action 
on  the  case  for  this  default ;  because  such  are  his  orders. 
The  creditor  must  elect  how  he  will  have  his  execution 
served.  If  he  elects  the  body,  he  may  impose  on  the  sheriff 
the  duty  of  using  as  much  diligence,  for  the  purpose,  as  the 
law  requires.  But  there  is  no  law  which  imposes  this  duty 
on  the  slieriff,  unless  the  creditor  requires  it.  The  creditor 
may  elect  to  proceed  against  the  bail,  and  he  ma}-  lawfully 
obtain  a  return  of  non  est  inventus,  under  such  circumstances 
as  that  no  arrest  in  fact  could  be  made.  He  may  deliver  his 
execution  to  the  sheriff  on  the  last  day  of  service,  when  he 
knows  the  debtor  is  not  to  be  found.  He  is  not  bound  to 
be  at  any  expense  in  searching  for  him,  nor  to  require  the 
sheriff  to  do  it  at  any  expense.  It  has  been  held,  in  Massa- 
chusetts, and  is  certainly  correct,  that  the  execution  may  be 
delivered  to  the  sheriff  of  a  county  other  than  that  of  which 
the  principal  is  an  inhabitant.  7  Mass.  208.  It  has  been 
held,  in  this  State,  that  the  creditor  is  bound  to  use  no  dili- 


360  CHESHIRE. 


Eldridge  v.  Bellows. 


gence  to  have  his  debtor  arrested.  Thompson  v.  Young,  hail  of 
Copp,  Strafford,  S.  C.  September  Term,  1806  ;  8  Manuscript 
Reports,  233 ;  case  stated :  the  execution  was  delivered  to  the 
deputy  sheriff  the  day  before  return  ;  Copp  had  been  at  large 
till  the  day  before  that ;  held,  the  creditor  entitled  to  his 
scire  facias  against  the  'bail  ;  not  bound  to  do  more  than  he 
did.  In  Buzzel  v.  Broivn,  hail  of  Drew,  Strafford,  February 
Term,  1807  ;  and  Palmer  v.  Morey,  Grafton,  May,  1807  ;  the 
bail  pleaded  that  principal  had  not  avoided ;  new  tiial 
granted  ;  return  of  sheriff  conclusive  ;  our  statute  has  not 
altered  the  common  law  ;  and  this,  I  think,  was  correct.^ 

The  common  law  is  this.  When  the  creditor  means  to 
pursue  the  bail,  he  sues  out  a  ca.  sa.  No  attempt  is  ever 
made  to  find  the  principal,  to  arrest  him  ;  but  the  execution 
is  left  at  the  sheriff's  office,  merely  to  give  the  bail  notice 
that  the  plaintiff  intends  to  proceed  against  the  bail.  There 
need  be  no  return  till  after  scire  facias  issues,  because  it  is 
the  leaving  the  writ  at  the  sheriff's  office  which  gives  the 
notice,  and  it  is  the  business  of  the  bail  to  search  the 
office. 

In  this  State,  something  more  must  be  done  to  give  the  bail 
notice.  There  must  be  a  return  of  non  est  inventus  ;  because, 
as  our  execution  is  against  goods,  lands,  and  bod\%  till  return 
the  bail  cannot  know  that  the  creditor  intends  to  proceed 
against  the  bail.     But  neither   the    creditor  nor  the   sheriff 

^  William  Gardner  v.  Samuel  Boardman,  Rockingham,  September  Term, 
1808;  11  Manuscript  Reports,  279. 

Scire  facias  against  defendant,  as  bail  of  Thomas  Boardman. 

Plea :  that  the  principal  was,  after  judgment,  and  until  return  of  execu- 
tion, publicly  residing  and  inhabiting  in  said  county  of  Rockingham  (in 
which  judgment  was  and  this  suit  is),  and  might  have  been  arrested  on 
the  execution;  of  which  the  plaintiff  had  notice;  and  that  the  plaintiff 
had  convenient  opportunity,  and  could  have  caused  the  principal  to  be 
taken  on  the  execution. 

To  this  plea  there  was  a  demurrer. 

Story,  for  plaintiff. 

Mason,  for  defendant. 

"  Without  any  argument,  The  Court  gave  judgment  for  plaintiff;  the 
point  having  been  settled  over  and  over  again,  within  the  last  seven  year.s, 
that  such  a  plea  was  bad." 


DECEMBER   TERM,   1814.  361 

Eldridge  v.  Bellows. 

is  bound  to  use  an)''  endeavor.s  to  arrest  the  debtor  on  tlie 
execution  ;  and  neitlier  the  debtor  nor  the  l)ail  can  recjuire 
it  at  their  hands.  The  debtor  may  at  any  time  sunender 
himself  after  the  execution  issues,  and  tlie  bail  may  surrender 
him.  This  action  is  brought  to  compel  ihe  sheriff  to  take  the 
debtor  without  surrender  ;  and  yet  bail  stipulated  to  surren- 
der the  debtor  or  pay  the  debt,  —  "Deliver  him  to  me:  I 
will  take  him  into  my  custody  ;  and  I  engage  either  to  pay 
the  debt  or  that  he  shall  not  avoid.  That  is,  I  will  return 
him  to  the  custody  of  the  law,  where  I  found  him."  ^  Creditor 
had  him  in  custody  in  a  situation  where  he  had  no  occasion 
to  make  any  search.  The  bail,  on  his  part,  engaged  to  see 
him  forthcoming  ;  but  the  creditor  is  not  obliged  to  go  in 
quest  of  either,  to  fulfil  their  engagements.  When  there  is  no 
bail,  the  creditor  must  seek  liis  debtor,  if  hapl}^  he  may  be 
found.  If  there  is  bail,  it  is  the  affair  of  the  bail  to  seek  him. 
The  security  given  for  defendant  is  called  bail,  l)ecause  the 
defendant  is  delivered  to  the  surety,  and  is  supposed  to  con- 
tinue in  his  friendly  custody,  instead  of  remaining  in  the  less 
friendly  custody  of  the  sheriff.  3  Blackst.  290 ;  7  Johns. 
155.  Bail,  in  the  language  of  the  books,  are  said  to  have 
their  principal  always  upon  a  string,  which  they  may  ])ull 
whenever  they  please,  and  surrender  him  in  their  own  dis- 
charge. It  is  not  the  fault  of  the  creditor  or  the  sheriff,  that 
the  bail  will  not,  or  cannot,  surrender  the  principal.  The 
law  has  given  him  very  extensive  powers  to  enable  him  to  do 
so.  He  may  take  the  principal  at  any  time,  even  on  Sunday  ; 
and  in  any  place,  even  in  another  State  ;  he  may  break  open 
the  outer  door  of  the  house  for  the  purpose  ;  and  he  may  do 
all  this  by  deputy  as  well  as  by  himself.  7  Johns.  145. 
Why  has  the  law  bestowed  these  powers  and  {)rivileges, 
much  greater  than  what  is  conceded  to  the  creditor,  or  the 
sheriff,  his  officer?     It  is  because  the  defendant  was  consid- 

^  "  He  was  Whitmore's  bail  upon  the  writ,  and,  in  that  capacity,  had 
become  liable  to  satisfy  the  judgment  which  might  be  recovered  against 
Whitniore,  unless  he  should  produce  the  principal  to  the  officer,  before  the 
return-day  of  the  execution,  that  he  might  be  arrested."  Gilchrist,  J., 
in  NetUeton  v.  Billings,  1843,  13  N.  H.  446,  448. 


362  CHESHIRE. 


Eldridge  v.  Bellows. 


ered  in  his  custody,  and  has  escaped  from  him  ;  and  because 
he  is  bound  to  surrender  liim. 

We  have  seen  that  tlie  creditor  need  use  no  diligence,  no 
endeavors,  to  have  his  debtor  arrested.  The  bail,  as  it  re- 
spects him,  have  no  plea  to  make  that  lie  has  afforded  no 
opportunity  to  the  sheriff  to  make  an  arrest.  Now  it  is  much 
more  unreasonable  for  the  bail  to  throw  the  burden  of  hunt- 
ing up  their  prisoner  (the  man  they  have  engaged  to  see 
forthcoming)  on  the  sheriff.  This  is  a  piece  [?]  of  service  not 
required  of  him,  nor  paid  for  by  the  creditor,  his  em]:)loyer. 
The  bail,  who  is  presumed  to  be  the  keeper  of  the  debtor, 
will  not  condescend  so  much  as  to  give  information,  or  agree 
to  pay  any  expense.  He  will  not  require  the  sheriff  to  go 
out  of  his  precinct.  But  must  he  search  the  county  ;  how 
strictl}^;  where  is  the  degree  of  diligence  defined;  or  is  it  to 
be  tried  by  a  jury  in  each  case?  This  declaration  merely 
states  that  he  might  have  been  taken.  But  it  does  not  state 
that  he  was  in  the  presence  of  the  deputy  sheriff  holding  the 
execution  ;  or  that  he  was  opeidy  about,  at  what  time,  or  what 
place.  Is  the  deputy  sheriff  to  come  prepared  to  give  an 
account  of  himself  for  six  months?  I  think,  when  asked  by 
the  bail  for  the  debtor,  he  may  reply,  "Am  I  his  keeper?" 
He  may  go  further,  and  say,  "  But  you  are."  Upon  this  doc- 
trine, no  sheriff  could  ever  safely  receive  an  execution.  How 
does  he  know  there  is  bail?  He  may  well  suppose  he  is  ac- 
countable to  no  one  but  his  employer,  the  credibM'.  But  he 
is,  upon  this  doctrine,  accountable,  in  a  much  higher  degree,  to 
the  bail,  of  whose  existence  he  knows  nothing. 

It  is  to  be  observed  that  no  facts  are  stated  showing  this 
return  to  be  false  ;  as  would  be  the  case  if  the  declaration 
stated  that  the  debtor  was  in  company  with  the  sheriff  hold- 
ing the  execution  ;^  still  more,  if  it  stated  that  the  bail  sur- 
rendered, or  offered  to  surrender,  him  to  the  officer  holding  the 
execution.    2  Mass.  485.  (a)     In  this  latter  case  it  would  be  a 

(a)  So  is  clause  in  act  I'egulating  bail  in  justice  suits.  Laws,  ed.  1805, 
104. 

1  See  Parker,  J.,  in  Rowell  v.  Hoit,  1835,  8  N.  H.  38,  39;  and  in 
Cushing  v.  JJreck,  1839,  10  N.  H.  Ill,  115. 


DECEMBER   TERM,  1814.  363 

Eldridge  v.  Bellows. 

good  surrender;  and,  if  deprived  of  it  by  a  false  return,  the 
bail  would  doubtless  have  remedy.  According  to  this  decla- 
ration, the  bail  does  nothing  ;  he  requires  every  thing  to  be 
done  for  him  by  the  sheriff. 

The  truth  is,  the  bail  can  discharge  himself  only  by  surren- 
der. This  is  the  language  of  our  statute,  and  of  the  common 
law.  (a)  No  such  action  as  this  was  ever  attempted.  It  is 
absurd  to  say  that  the  language  of  the  precept  is  a  direction 
to  the  sheriff.  It  is  as  much  so  in  England  as  here.  The 
sheriff  is  bound  to  do  no  more  tlian  the  creditor  requires  him 
to  do.  Creditor  must  direct.  It  is  so  on  attachment ;  so  on 
levy.  What  he  does  he  must  do  truly.  Here  wow  est  inventus 
means  non-surrender.  "I  cannot  find  him,  using  the  diligence 
I  am  bound  to  use."  No  part  of  this  declaration  contradicts 
this  return. 

This  is  a  new  experiment,  which  neither  common  law%  nor 
statute  law,  nor  usage,  in  the  smallest  degree  countenances. 

[At  this  Term,  judgment  was  rendered  in  favor  of  Bellows  ; 
reversing  the  result  reached  in  the  original  action.]  ^ 

(a)  Our  statute  does  not  increase  the  duties  of  the  sheriff  beyond  what 
they  are  at  common  law,  nor  the  duties  of  creditor.  On  avoidance  of 
debtor,  and  return  of  non  est,  which  conclusively  proves  no  surrender 
made  en  pais  (and  if  any  surrender  in  court,  it  is  matter  of  record  and 
may  be  pleaded),  creditor  is  entitled  to  scir-e  facias.  To  contradict  this 
return,  sliow  it  false,  sliow  a  surrender. 

1  Since  the  statute  of  Dec.  16,  1824,  relative  to  the  allowance  of 
amendments  on  review,  it  has  been  held,  that  the  Court  may,  in  its  dis- 
cretion, refuse  to  allow  a  demurrer  to  the  original  declaration  to  be  filed 
on  review.  Colehrook  v.  Merrill,  1870,  49  N.  II.  213.  See  also  Frost  v. 
C/iesleij,  reported  ante,  202. 

The  opinion  on  the  last  point  assumes  that  the  common-law  liability  of 
bail  was  not  essentially  modified  by  the  statute  of  Feb.  15,  1791,  which 
provides  that  the  sureties  shall  be  held  "in  case  of  the  principal's  avoid- 
ance, and  return  of  '  non  est  inventus  '  upon  the  execution." 

Under  a  similar  statute  in  Connecticut  it  was  held  that  the  law  would 
not  infer  avoidance,  or  justify  a  return  of  non  est,  unless  ordinary  diligence 
had  been  used  by  the  ofiicer  to  find  the  debtor.  Beach  v.  Elliott,  1876, 
44  Conn.  237;  Iteebe  v.  Gardner,  1835,  11  Conn.  104;  Newell  v.  Hoadley, 
1831,  8  Conn.  381  ;  Edwards  v.  Gann,  1820,  3  Conn.  316. 

In  Massachusetts,  it  was  held,  that  bail  could  not,  on  scire  facias  against 


3G4  CHESHIRE. 


Eldridge  v.  Bellows. 


them,  question  the  return  of  non  est ;  and  that  a  plea,  that  the  principal 
was  abiding  in  the  county  and  might  have  been  arrested,  was  bad. 
Winchel  V.  Stiles,  1818,  15  Mass.  229.  But  in  Weld  v.  Bartlcll,  1813, 
10  Mass.  470,  475,  Parker,  J.,  said  that  bail  might  sue  the  sheriff  for  a 
false  return,  if  he  returned  that  he  had  made  diligent  search  for  the  judg- 
ment debtor,  without  making  any  such  search  at  all.  And  see  Stevens  v. 
Bujelow,  1815,  12  Mass.  4:5:3. 

In  Maine,  it  was  held  that  bail  may  sue  sheriff  for  falsely  returning 
that  he  has  made  diligent  search  and  cannot  find,  when  in  fact  he  has 
made  no  such  search.     Kidder  v.  Purlin,  18:30,  7  Greenl.  80. 

In  New  York,  the  law,  prior  to  the  statute  of  1813,  was  understood  to 
be  in  accordance  with  the  views  above  stated  in  Eldridge  v.  Bellows. 
CowKN,  J.,  in  Bishop  v.  Earl,  18:37,  17  Wend.  316,  318.  The  statute  of 
1813,  re-enacted  in  2  N.  Y.  Rev.  Stat.  382,  §  32,  imposed  on  the  sheriff  the 
duty  to  use  all  reasonable  endeavors  to  execute  the  execution,  notwith- 
standing any  directions  from  the  plaintiff.  Under  this  statute,  the  bail, 
although  they  cannot  discharge  themselves  by  pleading  that  the  sheriff 
might  have  arrested  (Bradley  v.  Bishop,  1831,  7  Wend.  352),  may  sue  the 
sheriff  for  a  false  return  of  non  est  where  the  arrest  might  have  been 
made  by  due  diligence.  Hinman  v.  Borden,  1833,  10  Wend.  307;  John- 
box,  J.,  in  McArlhur  v.  Pease,  1866,  46  Barb.  423,  431. 

The  N.  II.  statute  of  June  23,  1818  (substantially  re-enacted  in  Gen. 
Laws,  c.  242,  §§  1-3),  provides  that  the  officer  shall,  at  least  fifteen  days 
before  the  return-day,  give  the  bail  a  notice  in  writing.  "  stating  that  such 
execution  is  in  his  hands,  the  amount  of  the  same,  and  when  returnable." 

For  the  construction  given  to  this  statute,  see  Emerson  v.  Brown,  1821, 
2  N.  H.  347;  Goodwin  v.  Smith,  1827,  4  N.  H.  29;  Rowell  v.  Hoii,  1835, 
8  N.  H.  38,  40;  Atherton  v  Thornton,  1835,  8  N.  H.  178;  Nettlelonv. 
Billings,  1843,  13  N.  H.  446;   Curleton  v.  Bartlelt,  1845,  16  N.  H.  538. 

For  the  present  statute  as  to  the  return  necessary  to  charge  bail,  see 
Gen.  Laws,  c.  242,  §  5. 

The  N.  II.  statute  of  Feb.  9,  1791,  relative  to  the  liability  of  indor.sers 
of  writs,  has  received  a  construction  less  favoral)le  to  indorsers  than  that 
given  to  somewhat  similar  statutes  in  Massachusetts  and  Maine.  So  long 
as  good  faith  is  observed,  the  defendant  is  not  bound  to  active  diligence 
in  collecting  his  execution  for  costs  against  the  original  plaintiff.  IJeijwood 
V.  Benton,  1871,  51  N.  II.  304. 


DECEMBER   TERM,  1814.  365 


Carpenter  v.  Wild. 


Thomas  Carpenter,  Executor,  v.  Benjamin  Wild. 

An  executor,  whose  authority  is  derived  solely  from  an  appointment  in  Massa- 
chusetts, cannot  sue  in  New  Hampshire. 

Assumpsit,  by  Thomas  Carpenter,  of  Rehoboth,  Mass.,  ex- 
ecutor of  Thomas  Carpenter  2d,  late  of  same  place,  against 
Benjamin  Wild,  of  Chesterfield,  N.  H. 

The  first  count  was  upon  a  note  made  by  the  defendant  to 
the  plaintiffs  testator. 

The  defendant's  third  plea  was,  that  the  plaintiff  never  was 
executor  of  the  last  will,  &c.,  of  Thomas  Carpenter  2d,  nor 
ever  administered  any  of  his  goods  as  such.  The  plaintiff 
replied  that  he  was  and  is  executor,  and  hath  administered  the 
deceased's  goods  as  such.  Issue  joined.  The  evidence  was, 
letters  testamentary  granted  by  the  judge  of  probate,  in  the 
county  of  Bristol,  in  Massachusetts,  of  which  county  the  de- 
ceased, at  the  time  of  his  death,  was  an  inhabitant.  On  this 
issue,  a  verdict  was  taken  for  the  plaintiff  by  consent,  to  be  set 
aside  and  a  verdict  entered  for  the  defendant,  if  the  Court 
should  be  of  opinion  that  this  evidence  was  insufficient. 

Another  question  was  raised,  and  considered  by  the  Court, 
but  is  omitted  in  this  report.^ 

B.  M.  Atherton,  for  the  plaintiff. 
F.  Alexander,  for  the  defendant. 

Smith,  C.  J.     As  to  the  question  saved  on  the  third  issue. 

It  comes  within  the  principle  of  a  case  decided  at  the  Law 
Term,  in  Grafton,  December,  1813,  Mary  Atwood,  adnix,  v. 
Nath.  Hix,  which  was  assumpsit  on  a  promissory  note  made  by 
Rix  to  Moses  Atwood,  the  intestatei  The  defendant  pleaded 
in  bar,  among  other  pleas,  that  no  letters  of  administration 
upon  the  goods  or  estate  of  Moses  Atwood  had  been  issued  to 
the  plaintiff  by  any  probate  court  within  this  State.     Plaintiff 

^  Statement  condensed  by  compiler. 


366  CHESHIRE. 


Carpenter  v.  Wild. 


demurred,  and  defendant  joined  in  demurrer.    Tlie  plea  in  bar 
was  adjudged  good. 

We  are  sensible  that  it  has  formerly  been  the  usage,  in  this 
State,  to  admit  administrators  appointed  in  other  States,  par- 
ticularly in  Massachusetts,  to  sue  here.  This  usage,  doubt- 
less, arose  from  an  agreement  of  the  four  New  England 
colonies  (New  Hampshire  w^as  then  a  part  of  Massachusetts) 
made  in  the  year  1648.  This  usage,  when  confined  to  Massa- 
chusetts, or  perhaps  to  New  England,  would,  in  many  cases, 
be  very  convenient.  But  the  legislative  regulations  of  the 
office  and  duty  of  administrators,  their  powers  and  their 
duties,  are  such  as  to  make  it  indispensably  necessary  that 
the  administrator  should  derive  his  authority  from  the  laws  of 
the  State.  On  these  accounts,  Massachusetts  now  refuses  to 
permit  administrators  appointed  out  of  the  Commonwealth  to 
prosecute  or  defend  actions.  It  would  be  unreasonable,  on  our 
part,  to  permit  theirs  to  have  greater  privileges  than  the  courts 
of  that  State  concede  to  ours.  It  was  originally  a  matter  of 
comity  ;  and,  when  the  reason  for  it  ceases,  the  courtesy  ought 
to  cease  with  it. 

(See  5  Binn.  381.  S.  C.  of  Pennsylvania  refuses  to  recog- 
nize a  discharge  of  a  debtor  under  the  insolvent  laws  of  the 
District  of  Columbia,  as  exempting  the  body  from  arrest ; 
because  the  courts  of  Columbia  would  not  reciprocate  the 
rule,  and  the  rule  of  the  Pennsylvania  court  is  to  pay  the 
same  regard  to  the  insolvent  laws  of  their  sister  States  which 
the  courts  of  such  States  pay  to  the  insolvent  laws  of  Penn- 
sylvania.    5  Binn.  385.) 

[After  referring  to  the  forms  of  pleading  and  judgment,  the 
opinion  discusses  another  point,  omitted  in  this  report.] 

After  the  delivery  of  the  opinion,  the  plaintiff  became  non- 
suit.^ 

1  S.  P.  Sahin  v.  Gilman,  1818,  1  N.  H.  193.  And  see  Taylor  v.  Barron, 
1857,  35  N.  H.  -181:,  and  cases  cited  on  p.  49G;  and  Leonard  v.  Putnam, 
1871,  51  N.  H.  247. 

As  to  the  former  custom,  compare  Riley  v.  Riley,  1808,  3  Day  (Conn.), 
74,  80,  89.  See  also  extracts  from  Manuscript  Treatise  on  Probate  Law, 
post. 

For  a  recent  limitation  of  the  general  doctrine  that  a  foreign  ad  minis- 


DECEMBER   TERM,   1814.  367 


Wood  V.  "Weld. 


GRAFTON,  DECEMBER  TERM,  1814. 


Samuel  Wood,  Administrator,  v.  Oliver  F.  Weld. 

The  answers  made  by  a  person  to  interrogatories  put  to  him  by  order  of  tlie  judge 
of  probate,  on  a  complaint  against  him  for  concealing  and  embezzling  the  goods 
of  an  intestate,  may  be  given  in  evidence  by  the  administrator,  in  an  action 
against  the  person  thus  interrogated. 

Action  for  money  had  and  received. 

Plea  :  non  assumpsit. 

The  plaintiff  offered  in  evidence  a  copy  of  a  probate  record 
of  proceedings  of  a  probate  court,  Iiolden  at  Plymouth  in  said 
county,  on  the  twelfth  day  of  February,  1813,  containing  the 
confessions  of  the  said  defendant,  in  answer  to  certain  interrog- 
atories put  to  him  by  order  of  the  judge  of  probate,  on  com- 
plaint against  said  defendant  for  concealing,  carrying  away, 
and  embezzling  the  money,  goods,  and  chattels  of  the  intes- 
tate. 

The  Court  rejected  the  evidence,  to  which  the  plaintiff 
excepted. 

[Verdict  for  the  defendant,  which  the  plaintiff  moved  to  set 
aside.] 

[Smith,  C.  J.,  and  Ellis,  J.,  concurred  in  setting  aside 
the  verdict.  Livermore,  J.,  contra.  It  is  said  that  each 
judge  gave  an  opinion.  The  notes  of  Smith,  C.  J.,  are  as 
follows  :]  — 

On  application  of  executor  or  administrator,  heir,  creditor, 
legatee,  or  person  having  interest,  &c.,  alleging  that  he  sus- 

trator  cannot  sue,  see  Purple  v.  Whithed,  1876,  49  Vt.  187,  where  it  was 
held,  that  an  administrator  appointed  in  Massachusetts  may  bring  suit,  in 
Vermont,  against  a  non-resident  defendant,  on  a  note  payable  generally, 
and  may  attach,  by  trustee  process,  a  credit  due  to  the  defendant  from  a 
resident  of  Vermont. 


368  GRAFTON. 


Wood  V.  Weld. 


pects  A.  B.  hath  embezzled,  &c.,  judge  may  examine  him  on 
oath  for  discovery  of  property  of  deceased.  On  refusal  to 
answer,  judge  may  commit.  The  judge  who  granted  adminis- 
tration, &c.,  has  jurisdiction.  N.  H.  Laws,  ed.  1797,  248, 
249 ;  1  Manuscript  on  Descent,  &c.,  691. 

This  is  in  the  nature  of  bill  of  discovery  in  courts  of  equity. 
Complaint  seeks  no  relief ;  judge  can  give  none.  It  is  in  aid 
of  some  other  jurisdiction,  in  civil  suit  ;  which  other  jurisdic- 
tion cannot  compel  discovery.  (Discovery  and  relief  may  be 
in  chancery,  or  discovery  only  in  aid  of  other  courts.)  It  is 
intended  the  better  to  enable  such  court  to  decide. 

The  answers  may  doubtless  be  used  in  a  trial  between  the 
parties. 

There  can  be  no  doubt  as  to  constitutionality  of  this. 
Article  15,  Bill  of  Rights,  relates  to  criminal  proceedings  only. 
See  2  Manuscript  on  Descent,  &c.,  995,  Idiots. 

If  not  usable  in  action,  of  no  use.  Judge  of  probate  cannot 
act  after  discovery  ;  must  dismiss  then  ;  functus  officio.  He 
has  power  to  compel  the  discovery.  Why  ?  Cut  bono,  if  not 
evidence. 

Objection.  1st,  bill  of  rights  ;  (a)  2d,  common-law  maxiui 
—  furnish  evidence  in  civil  suits.  Answer.  Not  so  in  equity. 
There  defendant  bound  to  discover. 

Reason  for  deviation  in  case  of  deceased,  idiots,  &c. 

In  probate  court,  and  on  this  examination,  may  exculpate 
as  well  as  inculpate. 

All  proceedings  before  judge  of  probate  evidence  same  as  in 
other  courts,  equity,  &c. 

In  modern  times,  held,  person  bound  to  answer,  as  a  witness, 
questions  which  subject  him  to  action. 

(a)  Bill  of  rights  would  not  prevent  erecting  court  of  chancery;  and 
the  power  of  compelling  discovery  by  oath  of  parties  is  one  of  the  most 
useful  and  essential  powers  of  such  court. 

Was  it  ever  doubted  that  this  court  could  compel  persons  charged  with 
contempt  of  court,  or  its  process,  to  purge  themselves  on  oath  ;  to  answer 
interrogatories  touching  the  truth  or  falsehood  of  the  charges?  And 
yet  this  is  a  crime. 

See  statute,  ed.  1805,  281,  husband  compelled  to  answer  on  oath  as 
to  personal  estate  received  in  right  of  his  wife,  &c. 


DECEMBER   TERM,  1814.  869 

Wood  V.  Weld. 

As  to  idiots,  much  verbiage  [in  the  statute]  ;  meaning, 
same. 

What  hardship  is  it  to  be  obliged  to  tell  the  truth  ?  No 
means  used  to  produce  any  thing  but  truth. 

This  evidence  only  good  against  themselves,  not  others  (not 
parties).^ 

^  An  examination  under  the  Connecticut  statute  was  held  admissible 
in  Benedict  v.  Nichols,  1792,  1  Root,  434. 

For  cases  where  the  examination  of  a  debtor,  or  a  witness,  in  bank- 
ruptcy proceedings,  has  been  held  to  be  evidence  against  the  deponent  in  a 
civil  suit,  see  Judd  v.  Gibbs,  1855,  3  Gray,  539;  Lynde  v.  McGregor,  1866, 
13  Allen,  182;  Milward  v.   Forbes,  1802,  4  Esp.  171;  Smith  v.  Beadnell, 

1807,  1  Campb.  30;  Stockjleth  v.  De  Tantet,  1814.  4  Campb.  10;  Robson  v. 
Alexander,  1828,  1  M.  &  P.  448.  (In  Uhler  v.  Maul/air,  1854,  23  Pa.  St. 
481,  the  evidence  excluded  was  given  in  a  proceeding  under  a  statute 
which  provided  that  "  no  such  answer  shall  be  used  in  evidence  in  any 
othef  suit  or  prosecution.") 

The  deposition  of  a  party,  taken  upon  insufficient  notice,  has  been  held 
receivable  in  evidence  against  him,  as  an  admission.  Carr  v.  Griffin,  1863, 
44  N.  H.  510;  Faunce  v.  Gray,  1838,  21  Pick.  243. 

For  the  construction  of  this  statute  and  similar  statutes  elsewhere, 
relative  to  examinations  of  persons  suspected  of  embezzlement,  see  Young 
V.  Tilden,  1824,  3  N.  H.  74;  Sewall,  J.,  in  Selectmen  of  Boston  v.  Boylston, 

1808,  4  Mass.  318,  322,  323;  0' Dee  v.  McCrate,  1831,  7  Greenl.  467; 
Bradley  v.  Veazie,  1860,  47  Me.  85;  Sherman  v.  Brewer,  1858,  11  Gray, 
210 ;  Arnold  v.  Sabin,  1849,  4  Gush.  46,  49  ;  Martin  v.  Clapp,  1868, 
99  Mass.  470;  Case's  Appeal  from  Probate,  1868,  35  Conn.  115;  Ives's 
Appeal,  1859,  28  Conn.  416;  Howell  v.  Fry,  1869,  19  Ohio  St.  556; 
Kimball  v.  Kimball,  1847,  19  Vt.  579. 

See,  generally,  as  to  propounding  interrogatories  in  probate  court, 
Higbee  v.  Bacon,  1828,  7  Pick.  14 ;  s.  c.  1829,  8  Pick.  484;  Stearns  v.  Brown, 
1823,  1  Pick.  530;  Saxton  v.  Chamberlain,  1828,  6  Pick.  422  ;  Pope  v. 
Jackson,  1831,  11  Pick.  113;  Sigourney  v.  Wetherell,  1842,  6  Met.  553; 
Richardson,  C.  J.,  in  Griswold  v.  Chandler,  1831,5  N.  H.  492,  497; 
Dyerv.  Stanwood,  1834,  7  N.  H.  261;  Moore  v.  Taylor,  1862,  44  N.  H. 
370,  372-374. 

24 


370  GRAFTON. 


Webster  v.  Edson. 


William  Webster  v.  Timothy  A.  Edson. 

The  legislature,  in  prescribing  forms  of  writs  in  certain  cases,  did  not  intend  to 
deny  all  remedy,  except  such  as  may  be  had  under,  or  agreeably  to,  writs  in 
such  forms. 

In  a  writ  against  a  sheriff,  directed  to  a  coroner,  and  containing  a  command  to 
attach  the  goods  or  estate  of  the  defendant,  the  words  "  and,  for  want  thereof, 
to  take  the  body  of  the  defendant,"  may  be  omitted,  and  the  words  "and 
summon  him  to  appear  "  inserted. 

On  oyer  of  the  writ,  it  commands  a  coroner  to  attach  the 
goods  or  estate  of  defendant,  sheriff  of  the  county  of  Grafton, 
to  the  value  of  $600,  and  summon  him  to  appear,  &c. 

Defendant  pleads,  in  abatement,  that  the  plaintiffs  writ  and 
process  is  an  original  writ  and  process  of  attachment,  and 
does  not  agree  with  the  form  of  original  writs  and  processes 
by  the  law  of  this  State  made  and  provided,  because  it  wants 
the  words  "  and,  for  want  thereof,  to  take  the  body  of  the  said 
,  and  him  safely  keep,  so  that  you  have  him." 

(He  might  have  added,  that  it  has  the  words  "  and  summon 

said to  appear,"  which  are  not  in  the  form  prescribed  for 

writs  of  attachment.) 

To  this  plea  there  is  a  general  demurrer,  and  joinder. 

D.  Sloan  and  Nelson,  for  defendant. 
^S*.  C.  Webster,  for  plaintiff. 

Smith,  C.  J.  I  consider  the  opinion  of  Parsons,  C.  J.,  in 
Cooke  v.  Gibbs,  3  Mass.  193,  as  sound  law,  and  applicable  to 
this  case.  There  it  was  attempted  to  take  advantage  of  the 
variance  on  special  demurrer  and  not  in  abatement ;  but,  as 
the  exception  to  the  writ  appeared  on  the  face  of  it,  the  Court 
might,  ex  officio,  quash  or  abate  it.  But  the  writ  was  good. 
The  legal  remedy  sought  by  the  plaintiff  in  its  fullest  extent 
could  not  be  obtained  by  a  writ  conforming  to  the  forms  pre- 
scribed by  statute.     It  is  not  to  be  supposed  that  the  legisla- 


DECEMBER   TERM,  1814.  371 

Webster  v.  Edson. 

ture,  in  prescribing  forms  of  writs  in  certain  cases,  intended 
to  deny  all  remedy  except  such  as  may  be  had  under,  or  agree- 
ably to,  writs  in  such  forms.  When  a  party  proceeds  by  at- 
tachment, he  must  follow  the  form  prescribed  ;  in  such  case 
that  form  shall  be  used.  So  of  summons.  But  here  the  case 
required  a  different  form.  By  law  the  plaintiff  might  attach 
defendant's  estate,  though  not  his  bod}'.  No  form  is  prescribed 
for  such  (this)  case. 

There  is  enough  stated  in  this  writ  to  show  that  plaintiff 
was  not  bound  to  sue  either  by  attachment  or  original  sum- 
mons, according  to  the  foiins  prescribed  for  such  writs.  De- 
fendant is  sued  as  sheriff;  his  remedy  would  not  have  been 
complete.  The  form  used  on  this  occasion  is  the  only  one 
adequate  to  the  remedy  to  which,  by  law,  plaintiff  is  entitled. 
This  writ  is  presumed  to  have  been  issued  by  order  of  court; 
it  is  signed  by  their  clerk ;  and  we  are  all  of  opinion  the 
Court  had  authority  to  grant  a  writ  in  this  form. 

I  know  of  no  decisions  in  this  State  either  way,  which  bear 
on  this  question.  The  practice  has  always  been  to  sue  in  this 
form  when  the  case  required  it.  The  instances  given  by  the 
Chief  Justice  in  Massachusetts  are  equally  applicable  in  this 
State.  JPlea  in  abatement  overruled.^ 

1  Compare  Pakker,  C.  J.,  in  Wood  v.  Ross,  1814',  11  Mass.  271,  276; 
Green,  J.,  in  Wood  v.  Carpenter,  1838,  9  N.  H.  153,  154. 

As  to  executions  varying  from  the  statutory  forms,  see  McMahan  v. 
Colclough,  1841,  2  Ala.  68;  and  Freem.  Exec.  §  38. 

As  to  allowable  variations  from  the  literal  form  of  an  oath  prescribed  by 
statute,  see  Flint  v.  Clinton  Co.,  1841,  12  N.  H.  430,  436,  437;  Randall  v. 
Baker,  1850,  20  N.  H.  335,  337,  338. 


372  GRAFTON. 


Porter  v.  Tarlton. 


Dudley  Porter,  Plaintiff  in  Review,  v.  William  Tarlton. 

A  sheriff  who  delivers  attached  goods  to  a  receiptor  does  so  at  his  own  risk, 
unless  the  taking  of  the  receipt  is  directed  or  ratified  by  the  creditor. 

Case  against  the  sheriff,  for  the  default  of  his  deputy, 
Mitchell,  in  not  keeping  property  attached  in  a  suit  brought 
by  the  plaintiff  against  one  Niles. 

Trial  before  Livermore,  J. 

It  appeared  that  Mitchell  delivered  the  attached  property 
to  one  Aspinwall,  and  took  his  receipt  therefor.  The  defence 
set  up  was,  in  substance,  that  the  plaintiff,  after  obtaining  exe- 
cution against  Niles,  agreed  to  accept  the  receipt  in  lieu  of  the 
goods,  and  to  discharge  Mitchell  from  his  responsibility  to 
keep  the  goods  in  his  custody  ;  and  that  this  agreement  was 
executed  on  Mitchell's  part  by  delivering  up  the  receipt  to  the 
plaintiffs  agent. 

A  verdict  was  rendered  for  the  defendant,  which  the  plain- 
tiff moved  to  set  aside,  on  account  of  various  rulings,  which 
are  not  deemed  material  to  be  stated  here.^ 

[Smith,  C.  J.,  drew  up  an  opinion,  from  which  the -follow- 
ing is  an  extract :]  — 

Independent  of  an}'^  agreement  of  creditor,  or  his  agent,  it  is 
no  defence  that  Mitchell  had  delivered  them  [the  goods 
attached]  to  Aspinwall,  and  had  taken  his  receipt.  If 
directed  by  the  creditor  to  do  so,  of  if  creditor  content  to  take 
such  receipt,  instead  of  looking  to  him,  Mitchell,  this  would 
discharge  Mitchell  ;  otherwise  not.  Mitchell  takes  security 
at  his  own  risk  for  his  indemnity  ;  and  such  indemnity  reason- 
able, and  therefore  not  unlawful. 

Upon  the  evidence  in  this  case,  the  only  ground  of  defence 
is,  that  creditor  agreed  to  discharge  Mitchell  from  his  respon- 
sibility by  law,  safely  to  keep  in  his  custody  till  expiration  of 

1  Statement  of  facts  by  the  compiler. 


DECEMBER   TERM,  1814.  373 

Porter  v.  Tarlton. 

thirty  days  from  attachment,  and  to  accept  the  receipt  Mitch- 
ell had  taken  from  Aspinwall  in  lieu  of  the  goods.  If  he  did  so 
agree,  it  is  reasonable  that  Mitchell  should  be  discharged  ;  be- 
cause Mitchell  has  executed  the  agreement  on  his  part,  which 
was  made  on  good  consideration  (damage  to  Mitchell)  ;  and 
has  thereby  lost  his  remedy  against  Aspinwall,  because  the 
receipt  is  discharged  by  Edson,  agent  of  the  creditor. 

Smith,  C.  J.,  and  Ellis,  J.,  concurred  in  setting  aside  the 
verdict,  on  account  of  erroneous  rulings  at  the  trial.  Liver- 
more,  J.,  dissented.  The  grounds  of  his  dissent  are  not  stated. 
His  rulings  at  the  trial  show  that  he  agreed  with  Smith,  C.  J., 
in  the  doctrine  that  the  sheriff  took  a  receiptor  at  his  own 
risk.^ 

1  In  Bunlett  v.  Bell,  1831,  5  N.  H.  433,  it  was  decided  that,  if  the 
sheriff  deliver  attached  goods  to  a  receiptor,  who  is  apparently  in  good 
circumstances,  he  will  not  be  liable  if  the  debt  is  lost  through  the  even- 
tual insolvency  of  the  receiptor.  "This,"  said  Chief  Justice  Parker,  in 
1844:  (15  N.  H.  36),  "  is  a  relaxation  of  the  principle,  as  formerly  under- 
stood." It  is  directly  opposed  by  a  very  able  decision  in  Vermont, — 
Gilbert  v.  Crandall,  186 1,  34  Vt.  188.  See  also  Drake,  Attach.  4th  ed. 
§§  344,  361-361;  and  Storrs,  J.,  in  Jordan  v.  Gallup,  1844,  16  Conn.  536, 
545,  546. 

In  Runletl  v.  Dell,  it  was  assumed  that  a  sheriff  is  not  obliged  to  accept 
a  responsible  receiptor ;  and  upon  that  assumption  the  decision  has  been 
criticised.  See  34  Vt.  192.  But  it  has  since  been  said,  "  If  the  debtor 
tenders  a  responsible  receiptor,  the  sheriff  is  bound  to  accept  him.  ..." 
Parker,  C.  J.,  in  West  v.  Meserve,  1845,  17  N.  H.  432,  436;  and  see 
HiBBARD,  J.,  \n  Batchelder  v.  Putnam,  1873,  54  N.  H.  84,  85;  Spear  v. 
Hill,  1873,  51  N.  H.  87,  91. 

The  decision  in  Runlett  v.  Bell,  has  repeatedly  been  recognized  as  the 
established  law  of  New  Hampshire.  See  Bellows,  J.,  in  Kendall  v.  Morse, 
1862,  43  N.  H.  553,  555. 


UNITED    STATES   CIRCUIT   COURT. 


NEW   HAMPSHIRE   DISTRICT,  MAY   TERM,   1798. 


Thomas  Brattle,  Executor  of  W.  Brattle,  v.  Josiah 
WiLLARD,  Administrator  of  the  Estate  of  Josiah  Wil- 
LARD,  late  of  Winchester,  not  administered  by  Solomon 
WiLLARD,  Executor  cum  testamento  annexo. 

Scire  facias  against  an  administrator,  suggesting  waste.  Plea  :  that  the  defendant 
had  fully  administered  the  personal  estate,  and  that  he  had  tendered  to  the 
ofhcer  lands  of  the  deceased,  more  than  sufficient,  in  value,  to  satisfy  the  plain- 
tiff's execution. 

A  demurrer  to  this  plea  was  sustained  by  a  divided  court. 

This  was  a  scire  facias.  It  recited  the  judgment  obtained 
by  the  plaintiff,  as  executor,  against  the  estate  of  the  defend- 
ant's testator ;  the  suing  out  of  execution  ;  the  marshal's 
return  of  nulla  bona ;  it  then  suggested  waste  by  adminis- 
trator, and  concluded  with  a  prayer  for  execution  against  the 
administrator  de  bonis  prop^-iis. 

The  defendant  pleaded  that  he  had  fully  administered  the 
personal  estate,  and  that  he  tendered  lands  of  the  deceased 
more  than  sufficient  in  value  to  satisfy  the  plaintiff's  execu- 
tion to  the  marshal,  who  refused  to  levy  upon  them. 

To  this  plea,  there  was  a  general  demurrer  and  joinder. 

November  Term,  1797.     Argument  for  Defendant. 
The  facts  disclosed  in  the  plea,  and  admitted  by  the  demur- 
rer, are  sufficient  to  bar  the  plaintiff  of  his  execution  de  bonis 
propriis.     Defendant  has  done  every  thing  required  of  him  as 


MAY   TERM,  1798.  375 

Brattle  v.  Willard. 

administrator,  "  having  exposed  the  estate  to  the  creditor,  to 
take  his  satisfaction  thereof"  (Laws,  ed.  1797,250);  or,  in 
other  words,  he  has  not  been  guilty  of  waste,  and  consequently 
is  not  liable  to  execution  against  his  own  goods  and  estate. 

It  is  clear  that  the  goods  and  estate  of  the  administrator 
are  only  liable  to  execution  for  the  debts  of  the  intestate 
upon  a  suggestion  of  waste,  and  this  suggestion  must  be 
proved.  The  facts  stated  in  the  plea  disprove  the  suggestion 
in  this  case. 

The  estate  is  the  debtor,  and  not  the  administrator  ;  and 
the  estate  is  the  fund  out  of  which  satisfaction  is  to  be  had  for 
the  debts  due  from  the  intestate.  It  is  the  duty  of  the  admin- 
istrator to  collect  the  debts  due  to  the  estate,  and  to  preserve 
and  safely  keep  the  estate  committed  to  his  charge  for  the 
purpose  of  paying  the  debts.  The  surplus  belongs  to  the 
heirs  at  law.  He  is  only  a  trustee  for  the  creditors,  and  an- 
swerable only  for  neglect  of  duty  or  breach  of  trust.  He  must 
collect  debts.  If  he  does  not,  they  will  be  lost ;  for  no  other 
person,  not  even  a  creditor,  can  collect  them.  Therefore, 
neglect  or  refusal  to  sue  for  a  sperate  debt  is  waste.  If  any 
of  the  chattels  should  be  lost  or  damaged  for  want  of  safe- 
keeping, this  is  waste.  The  law  gives  the  administrator  the 
custody  of  all  the  chattels,  and  it  must  intend  that  they  be 
safely  kept.  If  they  are  injured,  he  has  his  remedy  against 
the  wrong-doer,  and  a  neglect  to  pursue,  under  a  reasonable 
prospect  of  success,  would  also  be  waste  ;  the  damages,  when 
recovered,  are  assets. 

In  the  present  case,  it  is  stated,  in  the  plea,  that  the  personal 
estate  has  been  duly  administered  ;  and  this  fact  is  not  denied  ; 
it  is  admitted  by  the  demurrer.  As  to  the  personal  estate, 
then,  there  is  no  waste  ;  and  the  office  of  administrator,  as  it 
respects  this  estate,  according  to  the  English  law,  would  now 
cease.  Plene  administravit  is  a  bar  till  new  assets  be  shown. 
The  administrator,  in  that  country,  has  nothing  to  do  with 
real  estate. 

In  this  State,  the  law  is  different.  The  personal  estate 
stands  chargeable  with  the  payment  of  the  debts  and  funeral 
charges  of  the  deceased  ;   and,  whfere  the  personal  estate  is 


376  NEW   HAMPSHIRE   DISTRICT. 

Brattle  v.  Willard. 

insufficient  for  that  purpose,  the  real  estate  shall  supply  the 
deficiency. 

It  is  admitted  that  there  may  be  waste  in  relation  to  real 
estate.  The  administrator  may  suffer  it  to  be  sold  for  taxes, 
or  may  neglect  to  redeem  it  when  sold.  He  may,  when  duly 
licensed,  sell  it,  and  neglect  to  apply  the  proceeds  to  the  pay- 
ment of  debts.  In  the  latter  case,  however,  it  would  be  a 
waste  of  personal  estate. 

If  real  estate  had  been  sold,  and  the  money  applied  to  the 
private  use  of  the  administrator  in  the  present  case,  or  if  real 
estate  had  been  sold  and  the  administrator  had  neglected  to 
collect  the  money  arising  from  tlie  sale,  in  either  case,  the  alle- 
gation in  the  plea,  that  the  personal  estate  was  fully  admin- 
istered, would  not  have  been  true,  and  might  have  been 
traversed.  If,  through  the  neglect  of  the  administrator,  the 
real  estate  was  lost,  and  sufficient  should  not  remain  for  the 
payment  of  debts,  then  the  fact  stated  in  the  plea,  of  the  ten- 
der of  real  estate  belonging  to  the  deceased,  amounting  in 
value  to  $ ,  might  have  been  traversed. 

As  the  pleadings  stand,  it  is  admitted  that  the  personal 
estate  is  fully  administered,  and  the  real  estate  of  the  deceased, 
sufficient  to  satisfy  the  plaintiff's  demand,  is  offered  by  the 
administrator.  Why  then  charge  the  administrator  with  the 
payment  of  the  plaintiff's  debt  out  of  his  own  estate  ?  If  he 
is  chargeable,  it  must  be  on  this  ground,  that  it  was  his  duty 
to  cause  the  real  estate  to  be  sold,  and  the  proceeds  applied  to 
the  payment  of  debts.  But  no  such  duty  is  imposed  upon 
him  by  law,  and  he  cannot  surely  be  deemed  guilty  of  a 
neglect  of  duty,  for  not  performing  what  he  is  not  bound  to 
perform. 

The  statute  (ed.  1797,  250)  expressly  declares  "  that 
every  administrator  shall  make  payment  of  the  debts  of  the 
intestate  in  specie,  if  such  he  hath,  as  assets,  in  his  hands." 
This  clearly  implies  that,  in  case  he  have  not  specie,  he  is  not 
bound  to  pay  in  specie,  but  may  give  to  the  creditors  that 
which  he  has  received.  The  duty  of  a  trustee  extends  no 
farther.  The  law,  in  some  cases,  gives  him  the  power  to  turn 
the  estate  into  specie ;  but  it  in  no  case  enjoins  it  upon  him  as 


MAY   TERM,  1798.  877 

Brattle  v.  Willard. 

a  duty,  and  it  does  not  result  from  the  nature  of  the  office  or 
trust. 

Will  it  be  pretended  that  he  is  bound  to  turn  the  chattels 
into  specie  ? 

It  is  declared  in  the  statute,  ed.  1797,  255,  that  the  ad- 
ministrator shall  not  be  bound  to  account  for  the  appraised 
value  of  the  personal  estate,  if  he  produce  the  chattels  them- 
selves. 

If  the  administrator  were  to  expose  the  personal  estate  to 
the  creditor,  nulla  bona  would  be  a  false  return.  He  (the 
creditor)  could  not  maintain  a  suit  for  execution  de  bonis  pro- 
priis.  And  why  ?  Because  the  administrator  is  not  bound 
to  turn  the  personal  estate  into  specie. 

According  to  the  laws  of  this  State,  nulla  bona  is  a  false 
return.  We  use  the  term  in  the  sense  it  is  used  in  the  civil 
law,  from  whence  it  is  borrowed.  Nulla  bona.,  in  England, 
means  no  estate  on  which  n  fieri  facias  can  be  levied,  which  is 
the  execution  which  issues  against  administrators.  Nulla  bona^ 
in  this  State,  must  mean  no  estate  on  which  the  execution  in 
the  officer's  hand  can  be  levied.  But  our  executions  are 
against  the  lands,  as  well  as  the  chattels,  of  the  deceased. 

It  may  be  said  that  the  law  implies  that  it  is  the  duty  of 
administrator  to  convert  the  real  estate  into  specie  for  the 
payment  of  the  debts.  By  the  act  of  Feb.  15, 1791  (ed.  1797, 
254),  it  is  enacted  "  that,  when  the  personal  estate  of  any 
person  deceased  shall  not  be  sufficient  to  answer  the  just  debts 
which  the  deceased  owed,  the  judge  of  probate  is  empowered 
to  license  and  authorize  the  administrators  of  such  estate  to 
sell  so  much  of  the  real  estate  of  the  deceased  as  will  satisfy 
the  just  debts  which  the  deceased  owed  at  the  time  of  his 
death,"  &c. ;  and  for  that  purpose  the  administrator  is  enabled 
to  make  a  valid  conveyance. 

This  may  be  done.  But  does  the  law  make  it  the  duty  of 
the  administrator  to  apply  for  license  ?  It  does  not,  but 
leaves  it  to  his  discretion  whether  to  apply  or  not ;  and,  if  he 
does  apply,  it  is,  after  all,  referred  to  the  discretion  of  the  judge, 
whether  he  shall  have  that  permission  without  which  he  can- 
not sell.     It  is  certainly  laying  down  a  position  too  broad  to 


378  NEW   HAMPSHIRE   DISTRICT. 

Brattle  v.  Willard. 

say  that  the  administrator  is  bound  to  sell.  At  most  he  can 
only  be  bound  in  duty  to  endeavor  to  sell.  But  it  is  nowhere 
said  he  shall  apply.  From  whence  it  is  inferable  that  the 
law  has  referred  it  to  his  own  discretion  whether  to  apply  or 
not. 

What  strengthens  the  construction  contended  for  is,  that, 
in  the  case  of  personal  estate,  the  judge  is  empowered  to 
license  the  sale  thereof  on  the  application  of  the  administrator, 
and  yet  his  neglect  to  apply  for  license  is  not  considered  as  a 
neglect  of  duty,  and  subjects  him  to  no  disability  whatever. 
He  administers  it  according  to  law  when  he  keeps  it  safely, 
and  exposes  it  to  the  creditors  when  called  for  on  execution. 

That  clause  of  the  statute,  on  page  250,  ed.  1797,  which 
relates  to  this  subject,  has  been  noticed.  But  it  is  proper  to 
recur  to  it  again.  After  the  clause  which  has  been  quoted,  — 
"  That  every  administrator  shall  make  payment  of  the  debts 
of  the  intestate  in  specie,  if  such  he  hath,  as  assets,  in  his 
hands,"  —  it  is  added,  "and,  if  he  hath  not  the  same,  he 
shall  expose  the  estate  to  the  creditor,  to  take  his  satisfaction 
thereof  at  his  election,"  the  execution  to  be  levied  and  satis- 
fied as  in  other  cases. 

It  may  be  urged  that  this  will  be  injurious  to  such  of  the 
creditors  as  may  be  compelled  to  levy  on  lands.  But  it  is  to 
be  remembered  that  this  can  only  happen  when  specie  and 
personal  estate  prove  insufficient ;  and  certainly  it  is  no 
greater  hardship  to  be  obliged  to  take  the  land  of  a  dead 
debtor  than  of  a  living  one.  Most  creditors,  in  the  latter 
case,  think  the  dead  land  better  than  the  living  body.  A 
satisfaction  by  a  levy  on  lands,  in  contemplation  of  law,  is  as 
perfect  and  complete,  and  as  advantageous  for  the  creditor, 
as  a  satisfaction  in  money,  and  much  more  valuable  than  the 
imprisonment  of  the  debtor's  body.  Besides,  if  the  creditor 
can  compel  the  administrator  to  sell  the  lands,  that  he  may 
receive  the  specie,  he  has  an  alternative  which  the  adminis- 
trator has  not.  He  can  take  the  land,  and  thus  put  it  out  of 
the  power  of  the  administrator  to  pay  in  specie. 

Upon  the  whole,  the  counsel  flattered  themselves  that  they 
had  satisfied  the  Court  that  the  plea  was  good,  and  that  the 


MAY   TERM,  1798.  379 

Brattle  v.  Willard. 

demurrer  must  be  overruled  ;  tliat  the  doctrine  which  must 
be  contended  for  by  the  counsel  on  the  other  side  was  not 
founded  on  any  clause  of  any  positive  statute  ;  that  it  did 
not  result  from  the  nature  of  the  administrator's  ofBce  ;  that, 
having  administered  the  estate  of  his  testator  according  to 
law,  he  was  not  chargeable,  in  his  own  person  or  estate,  with 
the  debts  of  the  deceased. 

Argument  for  Plaintiff. 

It  is  agreed,  that,  in  order  to  support  the  demurrer,  it  is 
necessary  to  show  that  it  was  in  this  case  the  duty  of  the 
administrator  to  apply  to  the  judge  of  probate  for  license  to 
sell  the  real  estate,  and,  having  obtained  leave,  actually  to 
sell,  and  apply  the  proceeds  to  the  payment  of  debts  due  from 
the  estate  ;  that  this,  and  this  only,  was  administering  the 
real  estate  according  to  law,  where  debts  were  due,  and  the 
personal  estate  insufficient ;  and  that  the  neglect  of  doing 
this  was,  in  law,  denominated  waste.  If  the  plaintiff  fails  in 
this,  he  fails  in  his  suit. 

The  term  "  waste  "  is  used  in  a  very  comprehensive  sense. 
To  one  unacquainted  with  the  legal  import  of  the  term,  it 
would  seem  absurd  to  say  that  an  administrator  had  wasted 
an  estate,  merely  because  he  had  neglected  to  collect  the 
debts  ;  but  a  neglect  to  collect  a  sperate  debt  Avould  be  a 
neglect  of  duty,  and,  therefore,  legal  waste.  The  word  is,  in 
fact,  in  its  technical  signification,  synonymous  with  neglect  of 
duty.  It  is  readily  admitted  that  a  scire  facias,  to  have  exe- 
cution against  an  administrator  de  bonis  propriis,  will  not  lie 
where  the  administrator  has  complied  with  the  duties  of  liis 
office,  and  administered  the  estate  according  to  law.  But, 
admitting  all  the  facts  stated  in  the  plea,  it  does  not  appear 
that  he  has  so  done  ;  or,  rather,  it  appeared  that  he  has  not 
administered  at  all  on  a  considerable  portion  of  the  estate 
of  his  testator  ;  namely,  lands  to  the  amount  of  $ . 

The  defendant's  plea  is  not  plene  administravit ;  for  it 
admits  that  there  is  yet  estate  enough  in  the  possession  of 
the  administrator  to  pay  the  debts,  or  at  least  the  present 
debt.     It  goes  on  the  ground  that  the  plaintiff  is  compellable 


880  NEW   HAMPSHIRE   DISTRICT. 

Brattle  v.  Willard. 

to  take  lands  in  satisfaction  of  his  debt,  or  suffer  it  to  remain 
for  ever  unpaid.  The  plea  is  not  a  temporary,  but  a  perpet- 
ual, bar. 

The  counsel  trusted  he  could  maintain,  to  the  satisfaction  of 
the  Court,  that  it  is  the  duty  of  an  administrator  to  sell  real 
estate  for  the  payment  of  debts,  when  the  personal  estate 
proves  insufficient  for  that  purpose. 

1.  It  will  not  be  denied  that  it  is  the  duty  of  the  debtor 
to  pay  his  debts  according  to  his  contracts,  and  that  he  can 
discharge  himself  of  them  in  no  other  wa}^  (without  the 
consent  of  the  creditor)  than  by  a  payment,  or  offer  of  pa}'- 
ment,  in  specie.  He  cannot  compel  the  creditor  to  receive 
lands,  or  any  thing  else,  in  satisfaction.  Now  all  the  duties 
and  obligations  of  the  deceased  debtor  descend,  and  rest 
upon  his  administrator,  as  far  as  the  estate  extends.  He 
represents  the  intestate,  and  it  is  his  duty  to  do  that  with  the 
estate  which  the  deceased  debtor  was,  in  his  lifetime,  bound 
to  do ;  namely,  if  he  had  not  specie,  to  procure  it,  and  pay  his 
debts,  (a)  Tlie  administrator  with  assets  is  as  much  bound 
to  pay,  and  in  the  same  way,  that  is,  according  to  the  con- 
tract, as  his  intestate.  He  is  bound  to  pay  before  suit 
brought ;  and,  to  enable  him  to  do  so,  the  law  has  indulged 
him  with  time.  To  neglect  to  pay  till  costs  had  accumulated 
would,  in  many  cases,  be  waste.  To  compel  men  to  fulfil 
their  contracts,  or  to  punish  them  for  their  neglect,  the  law 
permits  the  body  of  the  debtor  to  be  taken  in  execution. 
But  this  is  no  valuable  execution.  The  only  valuable  and 
adequate  satisfaction  is  payment  in  specie.  Has  it  not  always 
been  considered  as  a  violation  of  contracts,  and  an  impairing 
of  their  obligation,  to  exempt  the  body  from  imprisonment, 
and  leave  the  creditor  to  his  remedy  against  the  goods  and 
lands  of  his  debtor?  And  yet  the  doctrine  contended  for 
on  the  other  side  amounts  to  this.  Was  it  ever  conceived 
that  a  contract  lost  any  of  its  force  by  the  death  of  either  of 

(rt)  See  2  Blackst.  511.  Whatever  estate  of  the  deceased  comes  to  the 
hands  of  the  executor  or  administrator,  that  is  of  a  salable  nature  and 
may  be  convea-ted  into  ready  money,  is  called  assets;  and  these  assets  he 
may. convert  into  ready  money  to  pay  debts,  &c. 


MAY   TERM,  1798.  381 

Brattle  v.  Willard. 

the  contracting  parties  ?  That  kind  of  satisfaction  wliich  is 
obtained  by  levying  on  lands  was  devised  for  the  benefit  of 
creditors.  It  by  no  means  impairs  the  right  of  the  creditor 
to  demand,  or  the  obligation  of  the  debtor  to  pay,  specie. 

2.  In  the  case  of  in.solvent  estates,  the  real,  as  well  as 
personal,  estate  is  sold  and  turned  into  specie  for  the  pay- 
ment of  the  debts,  and  pursuant  to  the  law  which  has  been 
quoted  (p.  254).  If  an  estate  be  rendered  insolvent,  the 
administrator  is  bound  to  turn  every  thing  into  specie,  and 
pay  the  debts  in  specie.  What  reason  can  be  given  why 
this  should  be  the  case  where  the  assets  fall  short  of  the 
debts,  and  not  the  case  where  they  are  precisely  equal  or 
exceed?  If  the  estate  be  rendered  insolvent  and  prove 
solvent,  the  creditors  receive  j)ayment'in  specie.  Why  should 
the  insolvency  make  any  difference  ?  The  business  of  the 
administrator,  in  both  cases,  is  to  pay  the  debts  ;  and  the  rights 
of  the  creditors,  in  both  cases,  are  the  same.  It  would  be  better 
for  the  creditors  to  receive  seventy-five  per  cent  in  specie, 
than  one  hundred  per  cent  in  land. 

The  words  which  have  been  cited  from  the  statute,  p. 
250,  and  relied  on  by  the  other  side,  are  capable  of  a  very 
different  construction.  The  meaning  is  this:  If  the  admin- 
istrator hath  specie,  it  shall  be  his  duty  immediately  to  employ 
it  in  the  payment  of  debts.  If  he  have  no  specie,  and  the 
creditors  come  to  him  with  executions,  he  shall  expose  the 
estate  to  the  officer,  to  take  satisfaction  thereof  at  the  election 
of  the  creditor ;  that  is,  to  take  it  or  such  part  of  it  as  he  may 
choose,  or  to  omit  taking  it  and  give  the  administrator  a  rea- 
sonable time  to  convert  it  into  specie.  It  cannot  be  doubted 
but  that  the  administrator  shall  have  a  reasonable  time  for 
the  performance  of  his  duty. 

It  is  easy  to  conceive  of,  and  to  state,  many  cases  where  it 
would  be  adjudged  that  the  creditor  should  not  have  execu- 
tion de  bonis  propriis  against  the  administrator,  upon  the 
return  of  nulla  bona  by  the  officer, — such  as  these:  if  the 
administrator  had  not  had  sufficient  time  to  sell  the  real  estate, 
and  this  may  often  happen  with  administrator  de  bonis  non  ; 
if  he  had  applied  to  the  judge  for  leave,  and  had  been  refused 


382  NEW   HAMPSHIRE   DISTRICT. 

Brattle  v.  Willard. 

license  to  sell.  In  these  cases,  no  negligence  or  fault  could  be 
imputed  to  him.  But  no  excuse  of  this  sort  is  stated  in  the 
plea,  and  it  is  presumed  the  facts  would  not  warrant  it,  other- 
wise they  would  have  been  insisted  on. 

3.  A  third  argument  in  favor  of  the  doctrine  that  the 
administrator  is  bound  to  sell  the  real  estate,  and  pay  the  debts 
in  specie,  may  be  drawn  from  the  law  which  empowers  the 
judge  of  probate  to  license  the  sale,  and  enables  the  adminis- 
trator to  make  a  valid  conveyance.  Why  was  this  provision 
made,  and  why  was  the  power  given,  if  it  were  not  the  duty 
of  those  concerned  to  use  it  ?  If  it  be  useful  in  one  case,  it 
must  be  so  in  all.  It  is  true  there  are  no  words  in  the  act, 
declaring  that  administrator  should,  at  all  events,  sell.  It  was 
not  thought  necessary.  The  duty  resulted  from  the  nature  of 
the  office.  All  that  was  necessary  was  to  give  them  the 
means  of  discharging  their  duties.  To  say  that  he  may  sell, 
and  pay  some  of  the  creditors  in  specie,  and  that  he  is  not 
bound  to  do  so  to  all,  is  saying  that  the  law  allows  him  to  be 
partial,  and  to  discriminate  between  those  whose  claims  are 
equal.  It  is  giving  a  trustee  for  all  the  creditors  the  power  of 
saying  to  one  man,  "  You  shall  be  paid  in  specie  ; "  and  to 
another,  "  If  you  will  not  take  wild  lands  lying  in  the  extreme 
parts  of  the  State  in  satisfaction  of  your  claim,  you  shall  be 
paid  nothing."  It  is,  in  short,  giving  him  a  kind  of  discre- 
tion in  a  case  where  there  can  be  no  occasion  for  exercising  it 
beneficially,  and  where  there  is  the  strongest  temptation  to 
abuse  it. 

This  doctrine,  that  administrators  have  nothing  to  do  with 
real  estate,  is  not  only  repugnant  to  the  fundamental  duty  of  the 
office,  —  the  administration  of  the  assets  for  the  payment  of 
debts,  an  active,  not  passive  administration  suffering  the  cred- 
itors to  carve  for  themselves  ;  but  it  is  as  mischievous  to  the 
heirs  as  it  is  injurious  to  the  creditors. 

Upon  the  principles  of  our  law,  the  heirs  can  only  claim  the 
portion  of  estate  which  remains  after  the  debts  paid.  They 
never  can,  with  any  degrfee  of  certainty,  know  what  is  their 
own  until  this  lien  be  removed.  For,  though  a  division  of  the 
real  estate  may  take  place  upon  the  giving  of  bonds  to  refund 


MAY   TERM,  1798.  383 


Brattle  v.  Willard. 


when  debts  appear,  yet,  as  long  as  the  debts  remain  unpaid, 
the  land  of  any  one  or  more  of  the  heirs  is  liable  to  be  taken 
in  execution  by  the  creditors.  It  is,  therefore,  for  the  benefit 
of  the  heirs  that  the  administrator  should,  as  soon  as  possible, 
pay  the  debts,  (a) 

4.  But,  if  it  should  be  admitted  that,  by  the  true  construc- 
tion of  the  statutes  for  the  settlement  of  estates,  it  is  mani- 
festly the  intention  of  the  legislature  that  a  tender  of  real 
estate,  in  such  a  case,  bars  the  creditor  of  all  right  to  demand 
specie,  the  statute,  as  far  as  relates  to  this  provision,  is  void  ; 
the  legislature,  by  the  Constitution  of  the  United  States,  being 
expressly  prohibited  from  passing  such  an  act. 

In  the  tenth  section  of  the  first  article,  it  is  declared  "  that 
no  State  shall  make  any  thing  but  gold  and  silver  coin  a  ten- 
der in  payment  of  debts,  or  pass  any  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts." 

If  the  law,  therefore,  be  as  contended  for,  that  the  admin- 
istrator may  tender  real  estate  in  discliarge  of  the  plaintiff's 
debt,  it  is  a  nullity  ;  the  legislature  having  no  authority  to 
pass  such  an  act. 

The  foregoing  was  the  substance  of  the  arguments  used  by 
the  counsel  for  the  parties. 

(a)  The  doctrine  that  creditors  have  a  lien  on  the  real  estate  of  their 
deceased  debtor,  and  may  levy  at  any  time  they  please,  is,  if  true,  very 
prejudicial  to  the  heirs,  and  by  no  means  necessary  for  their  security,  if 
the  decision  in  this  cause  be  considered  as  fixing  the  law  on  this  point. 
The  administrator  is  liable  to  pay  specie  in  consideration  of  real  assets. 
This  is  all  the  creditors  can  reasonably  demand.  If  he  (the  administrator) 
sells  the  land  for  the  payment  of  debts,  the  heirs  cannot  complain ;  for 
they  are  entitled  only  to  that  which  remains  after  the  debts  are  paid. 

Allowing  the  creditors  to  levy  on  real  estate  when  there  are  personal 
assets  affects  the  rights  of  the  persons  interested  in  the  estate.  Let  us 
state  a  case.  A.  dies,  leaving  a  widow  and  two  children.  The  estate 
consists  of  S3, 000  real,  and  S3, 000  personal,  estate,  and  he  owes  S3, 000. 
The  law  has  destined  the  personal  estate  to  pay  the  debts,  and  then  the 
real  descends  thus:  the  widow  will  have  one-third  for  life,  and  the  rever- 
sion, and  the  other  two-thirds  will  descend  equally  to  the  children.  But, 
if  the  creditors  take  the  real  estate  for  the  debts,  then  the  personal  estate 
will  be  equally  divided  between  the  widow  and  children. 


384  NEW   HAMPSHIRE   DISTRICT. 

Brattle  v.  Willard. 

The  Court  were  divided  in  opinion.  Judge  Pickering 
held  the  plea  a  good  bar,  and  Judge  Cushing  the  contrary. 

They  gave  their  reasons  at  length  ;  in  substance  using  the 
same  arguments  as  the  counsel  had  used. 

The  cause  was,  of  course,  continued  till  May  Term,  1798; 
when  it  was  again  argued,  by  Mr.  Livermore  for  the  defendant, 
and  Mr.  Parsons  for  the  plaintiff. 

The  Court,  consisting  of  Chief  Justice  Ellsworth  and 
the  District  Judge,  were  divided  in  opinion  ;  Judge  Pickering 
adhering  to  the  opinion  he  gave  before,  and  the  Chief  Justice 
agreeing  in  opinion  with  the  former  circuit  judge. 

Judgment  according  to  law  was  given  in  favor  of  the  de- 
murrer, and  the  plaintiff,  accordingly,  had  his  execution  against 
the  administrator  de  bonis  propriis.  (a)  ^ 

(a)  I  did  not  hear  the  last  argument,  but  was  informed  that  it  did  not 
differ  materially  from  the  former,  and  that  Chief  Justice  Ellsworth 
delivered  his  opinion  in  a  very  masterly  manner,  and  much  to  the  satisfac- 
tion of  those  who  heard  him. 

Exeter,  10  Nov.  1798.  J.  S. 

1  See  the  next  case,  N.  H.  Strafford  Bank  v.  Mellen. 


SUPREME    JUDICIAL    COURT. 


STRAFFORD,   NOVEMBER  TERM,   1815. 


New    Hampshire    Strafford    Bank    v.    Martha    W. 

Mellen. 

An  administrator  is  guilty  of  waste,  if  he  fails   to  cause  the  real  estate  of  the 

intestate  to  be  applied  to  the  payment  of  the  debts,  when  the  personal  pEoperty 

is  insufBcient. 
Scire  facias  against  administratrix,  suggesting  waste.     Plea  :  that  intestate  left 

real  estate  sufficient  to  pay  the  debts,  and  that  the  personal  estate  had  been 

fully  administered.     Plea  held  bad. 

This  was  scire  facias ;  the  writ  stating  that  the  plaintiffs, 
at  the  C.  C.  P.,  holden  at  Gilraanton,  first  Tuesday  of  August, 
1813,  recovered  judgment  against  the  goods  and  estate  of 
Henry  Mellen,  late  of  Dover,  deceased  intestate,  in  the  hands 
of  the  defendant,  administratrix  of  his  estate,  for  the  sum  of 
$2,552.57,  damages,  and  $9.90,  costs  of  suit ;  that  execution, 
which  issued  on  the  same  judgment,  was  duly  returned  to  the 
C.  C.  P.,  at  January  Terra,  1814,  nulla  bona  ;  and  the  plaintiffs 
have  suggested  to  the  justices  of  said  court,  that  the  said  de- 
fendant has  wasted  the  estate  of  her  intestate,  whereof  the 
plaintiffs  have  made  application,  &c.,  to  provide  remedy  further 
in  that  behalf.  The  sheriff  was  commanded  to  make  known 
to  the  defendant,  that  she  appear,  &c.,  to  show  cause,  if  any 
she  have,  wherefore  the  plaintiffs  ought  not  to  have  their  exe- 
cution against  her  for  their  damages  and  costs  aforesaid,  and 
also  17  cents  more  for  said  writ  of  execution,  and  interest  on 
said  sums  ;  and  further  to  do  and  receive,  &c. 

25 


386  STRAFFORD. 


New  Hampshire  Strafford  Bank  v.  Mellen. 


Writ  dated  June  4,  1814. 

At  February  Term  last,  the  defendant  pleaded,  in  bar  of 
execution,  that  the  said  Henry  Mellen,  the  intestate,  at  the  time 
of  his  decease,  viz.  July  31,  1809,  &c.,  was  seised  and  possessed 
of  a  large  real  estate,  situate  in  said  county  of  Strafford ; 
which  real  estate  then  was,  and  ever  since  hath  been,  more  than 
sufficient  to  pay  and  discharge  all  the  just  debts  and  demands 
against  the  estate  of  said  Henry  Mellen,  at  the  time  of  his 
death ;  which  real  estate  then  was,  and  ever  since  hath  been, 
and  still  is,  subject  to  said  debts,  and  liable  to  be  taken  in 
execution,  extended,  and  levied  upon,  to  satisfy  the  same;  and 
the  said  defendant  further  says,  that  she,  on  the  day  of  the 
issuing  of  said  writ  of  scire  facias  against  her,  had  fully  ad- 
ministered all  the  personal  estate  which  belonged  to  the  said 
Henry  Mellen,  &c.,  which  came  to  her  hands  to  be  adminis- 
tered, &c. ;  and  that  she  hath  not,  nor,  on  tlie  day  of  issuing, 
&c.,  had,  any  personal  estate  which  belonged  to  the  said  Henry 
Mellen,  &c.,  in  her  hands,  to  be  administered  ;  without  that, 
that  the  said  Martha  hath  wasted  the  estate  of  the  said  Henry 
Mellen,  in  manner  and  form  as  the  said  plaintiffs,  in  their  said 
writ,  &c.,  have  supposed  ;  all  which  she  is  ready  to  verify  : 
wherefore  she  prays  judgment,  &c. 

To  this  plea  plaintiffs  demurred,  and  defendant  joined  in 
demurrer. 

D.  M.  Durell,  for  defendant. 

Smith,  C.  J.  The  question  presented  by  these  pleadings  is, 
whether  an  administratrix  is  guilty  of  waste,  in  not  paying  the 
debts  of  her  intestate  when  she  has  sufficient  real  estate,  as 
assets,  in  her  hands,  for  the  purpose. 

The  statute  (ed.  1815,  213,  §  24)  enacts,  that  every  admin- 
istrator shall  make  payment  of  the  debts  of  the  intestate  in 
specie,  if  such  he  hath,  as  assets,  in  his  hands,  and,  if  he  hath 
not  the  same,  he  shall  expose  the  estate  to  the  creditor,  to  take 
his  satisfaction  thereof,  at  his  election  ;  the  value  of  said  es- 
tate to  be  ascertained  by  appraisers  mutually  chosen,  and 
sworn ;  and  the  same  proceedings  shall  be  had  thereon  as  the 


NOVEMBER  TERM,   1815.  387 

New  Hampshire  Strafford  Bank  v.  Mellen. 

law  doth,  or  shall  hereafter,  direct  for  satisfying  executions  in 
other  cases.^ 

Whatever  construction  may  be  given  to  this  section,  clearly 
this  plea  is  bad,  because  it  does  not  state  that  the  administra- 
trix exposed  the  estate  of  her  intestate  to  the  creditor,  that  he 
might  take  his  satisfaction  thereof.  The  plea  admits  that  the 
estate  is  solvent ;  and  it  states  that  there  is,  in  the  count}-, 
real  estate  more  than  sufficient  to  pay  all  the  debts ;  but  it 
does  not  show  what  it  is  and  where  situate,  or  give  any  such 
description  as  that  the  creditor,  if  he  should  elect  to  take  it  in 
satisfaction,  may  know  where  to  find  it.  Suppose  the  plaintiffs 
should  traverse  the  fact  of  there  being  real  estate  sufficient  to 
satisfy  the  debts,  or  take  issue  on  this  material  allegation  in 
the  plea,  how  could  they  come  prepared  to  contest  the  proof 
on  the  part  of  the  defendant  ?  The  evidence  at  the  trial  would 
be  the  first  notice  of  the  title  they  were  to  contest. 

But  it  is  not  necessary  to  decide  the  cause  on  this  point. 
The  plea  would  have  been  bad,  if  it  had  stated  that  the  de- 
fendant, having  no  specie,  as  assets,  in  his  hands,  had  exposed 
to  tlie  plaintiffs,  after  the  judgment  and  execution  awarded, 
certain  real  estate,  describing  it  particularly  in  his  plea,  of 
greater  value  than  the  debt,  and  had  tendered  the  same  in  sat- 
isfaction thereof.  And  for  tliis  plain  reason,  because  the  cred- 
itor is  not  bound  to  take  satisfaction,  by  extent,  on  the  real 
estate  of  the  deceased.  He  may  take  it  at  his  election.  And 
this  election  is  not  between  taking  lands  in  satisfaction,  and 
suffering  his  debt  to  remain  unsatisfied  ;  but  between  taking 
lands,  and  compelling  the  administratrix  to  turn  the  lands  into 
specie,  so  that  she  may  be  enabled  to  pay  all  the  debts  in 
specie.  This  execution  is  to  be  satisfied  just  as  it  might  have 
been  if  it  had  been  issued  against  the  intestate  in  his  lifetime. 
The  creditors  might,  if  they  pleased,  levy  on  his  lands  or 
goods.  The  only  difference  is,  tliat,  as  they  cannot  now  liave 
the  body,  to  hold  till  payment  made  in  specie,  they  may  now 

1  Mead  v.  Harvey,  1S'21,  2  N.  H.  341,  decides,  what  was  assumed  in 
Brattle  v.  Willard,  and  Bank  v.  Mellen,  that  an  execution  issuing  against 
the  goods  and  estate  of  a  person  deceased,  in  the  hands  of  his  executor 
or  administrator,  may  be  extended  upon  lands  which  were  of  the  deceased. 


388  STRAFFORD. 


New  Hampshire  Strafford  Bank  v.  Mellen. 


have  the  body  of  the  administratrix  till  she  pay  the  debt  in 
specie.  These  creditors  are  no  more  bound  to  take  land  in 
satisfaction,  after  the  death  of  their  debtor,  than  before.  It  is 
the  duty  of  the  representative  of  the  debtor  to  pay  in  specie, 
having  assets  sufficient,  just  as  it  was  the  duty  of  the  debtor 
himself  to  do  so. 

In  construing  this  clause  of  the  statute,  the  defendant  leaves 
out  the  words  "  to  take  his  satisfaction  thereof  at  his  election." 
This  clause  states  the  law,  as  far  as  it  goes,  correctly ;  but  it 
does  not  state  all  the  law.  It  says  the  administrator  shall  pay 
in  specie  when  lie  has  it ;  he  shall  expose  the  estate  when  he 
has  not  specie  ;  that  the  creditor  may,  if  he  pleases,  take  satis- 
faction out  of  the  estate,  i.  e.  make  specie  out  of  the  goods,  or 
take  the  land  at  an  appraisal.  The  statute  goes  no  further ; 
but  the  common  law — regarding  the  rights  of  the  creditors, 
and  the  duty  and  obligation  of  a  debtor^  and  of  him  who  repre- 
sents a  debtor  —  enjoins  this  further  duty  on  the  administrator, 
viz.  to  convert  the  estate  into  specie  by  a  sale,  when  the  creditor 
refuses  to  take  satisfaction  in  any  thing  but  specie.  In  this 
way,  and  this  alone,  the  administrator  will  have  administered 
the  estate  according  to  law.  In  this  way  he  will  have  specie 
in  his  hands.  The  law  has  clothed  the  administrator  with 
ample  power  and  authority  for  the  purpose,  and  it  has  given 
him  sufficient  time  in  protecting  him  one  year  from  all 
suits,  (a) 

I  consider  the  decision  in  Brattle,  ex'r,  v.  Willard,  adrnW,  at 
Circuit  Court,  New  Hampshire  District,  May  Term,  1798,  as 
decisive  in  favor  of  the  plaintiff.     1  Manuscript  Reports,  167.^ 

(a)  Non-payment  of  a  debt  by  the  administrator,  when  there  are  suffi- 
cient funds,  is  waste;  and  the  Massachusetts  statute  of  1781,  p.  93,  declares 
(what  was  just  as  true  before  as  after)  that  the  neglect  or  unreasonable 
delay  of  executor  or  administrator  to  raise  money  out  of  the  estate  (the 
real,  if  need  be,  and  he  has  power  or  can  obtain  license  to  sell  the  same) 
(and  by  such  neglect  or  delay  the  estate  shall  be  taken  in  execution),  the 
same  shall  be  deemed  waste  and  unfaithful  administration. 

^  Judge  Smith's  minutes  show  that  the  manuscript  report  of  Brattle  v. 
Willard  was  read  by  him  upon  the  delivery  of  the  above  opinion  in  Bank 
V.  Mellen. 


DECEMBER   TERM,  1815.  389 


Hall  V.  Stone. 


[The  remainder  of  the  opinion  relates  to  the  question  of  in- 
terest.] 

Plea  bad.^     Interest  not  allowed. 


CHESHIRE,    DECEMBER   TERM,    1815. 


Edward  Hall,  Jr.,  v.  Samuel  Stone  and  David  Stone. 

Where  a  vendor  sells  an  entire  tract  of  land  with  covenant  of  warranty,  a  subse- 
quent purchaser  of  a  part  of  the  tract  can  sue  him  upon  this  covenant. 

A.  sold  to  B.  a  lot  of  land  containing  one  hundred  acres,  with  the  usual  covenant 
of  warranty.  B.  sold  eighty  acres  of  the  same  lot  to  C,  with  a  similar  cove- 
nant.    C.  was  evicted  by  one  claiming  under  title  paramount  to  A. 

Held,  that  C.  could  maintain  an  action  against  A.  on  his  covenant  of  war- 
ranty. 

Covenant.  Defendants  conveyed  to  Edward  Hall,  Sr., 
a  lot  of  land  containing  one  hundred  acres,  supposed  to  be  in 
Croydon,  and  covenanted  to  warrant  the  same  to  Hall,  his 
heirs  and  assigns.     Hall,  the  grantee,  conveyed  the  same  lot, 

1  Sustained  by  Bates  v.  Kimball,  1826,  1  Aik.  95.  See  also  Abbott 
V.  Cole,  1831,  5  Ohio  (Hammond),  87;  Prescott  v.  Pitts,  1812,  9  Mass. 
376;  Andrews  v.  Tucker,  1828,  7  Pick.  250;  Newcomh  v.  Wing,  1825, 
3  Pick.  168;  Minor  v.  Mead,  1820,  3  Conn.  289;  Wells,  J.,  in  Hannum 
V.  Day,  1870,  105  Mass.  33,  37. 

Upon  the  revision  of  the  probate  laws  in  1822,  it  was  made  the  duty  of 
the  administrator  to  apply  for,  and  procure,  license  for  the  sale  of  the 
realty,  when  the  personalty  was  insufficient  to  pay  the  debts;  and  the 
unreasonable  neglect  or  refusal  of  the  administrator  to  procure  license  and 
sell,  was  declared  to  be  maladministration  and  a  breach  of  his  bond.  Laws 
of  1822,  c.  31,  §  5;  substantially  re-enacted  in  Rev.  Stat.  c.  159,  §  12,  and 
Gen.  Laws,  c.  196,  §  13.  See  Sargent,  J.,  in  Hall  v.  Woodman,  1870, 
49  N.  H.  295,  309. 

It  is  held  maladministration  if  an  executor  sells  realty  under  a  license 
procured  by  the  false  representation  that  the  assets  were  deficient.  Chapin 
v.  Waters,  1872,  110  Mass.  195;  and  see  Richardson,  C.  J.,  in  Mead  v. 
Harvey,  1821,  2  N.  H.  341,  3i7. 


390  CHESHIRE. 


Hall  V.  Stone. 


with  similar  covenants,  to  one  Ezekiel  Hall.  The  latter  con- 
veyed a  part  of  the  lot,  say  about  eighty  acres,  by  metes  and 
bounds,  to  plaintiff,  Edward  Hall,  Jr.,  in  fee,  with  similar  cove- 
nants. Plaintiff  conveyed  to  one  Kinsley  in  fee,  the  same 
lands  conveyed  to  him,  with  similar  covenants.  Kinsley  was 
evicted,  and  has  recovered,  in  an  action  of  covenant  broken, 
against  plaintiff,  the  value  of  the  land  at  the  time  of  eviction, 
&c.  And  now  the  plaintiff  sues  defendants  on  covenant  of 
warranty  in  the  deed  to  Edward  Hall,  the  elder,  and,  in  his 
declaration,  sets  forth  his  title  as  above,  and  the  eviction  of 
Kinsley  and  recovery  against  plaintiff,  (a)  The  defendants 
plead,  first,  non  est  factum,  and,  second,  no  eviction  by  elder 
and  better  title. 

The  jury  found  the  issues  in  favor  of  plaintiff;  and  now  the 
defendants  move  in  arrest  of  judgment,  on  the  ground  that 
the  action  is  not  maintainable  by  the  assignee  of  part  of  the 
lands  conveyed  by  defendants ;  the  covenant  of  warranty  is 
not  divisible,  it  is  entire  ;  the  assignee  of  the  whole  may  take 
advantage  of  the  defendants'  covenants,  but  not  the  assignee 
of  a  part  only ;  (J)  defendants,  by  their  covenant,  are  liable 
only  to  one  action  ;  allowing  assignee  of  part  to  sue,  they  may 
be  subjected  to  many  actions. 

George  B.  Upham,  for  defendants. 
Jona.  H.  Hubbard,  for  plaintiff. 

Smitft,  C.  J.  This  is  a  covenant  real.  It  has  for  its  object 
something  annexed  to,  inherent  in,  or  connected  with,  land. 
It  (the  covenant)  is  transferred  to  the  purchaser  of  the  land 
by  the  conveyance.  When  Ezekiel  Hall  bought  the  lot,  this 
covenant  ran  with  the  land,  and  Ezekiel  Hall  was  entitled  to 
the  benefit  of  this  covenant,  and  might  maintain  an  action 
upon  it.  Defendants  covenanted  to  warrant  the  lot  to  Ezekiel 
Hall.     Defendants  have  covenanted  to  warrant  and  defend  the 

(a)  There  was  a  second  count,  stating  eviction  of  plaintiff  instead  of 
his  grantee,  Kinsley. 

(6)  Assignee  is  properly  of  the  whole. 


DECEMBER   TERM,  1815.  391 

Hall  V.  Stone. 

lot  to  Ezekiel  Hall  against  the  eviction  of  any  person  what- 
ever, (a) 

Suppose  Ezekiel  Hall  evicted  of  part  of  the  lot,  eighty 
acres.  It  is  clear  he  could  maintain  an  action  to  recover 
damages  for  that  eviction.  (5)  Defendants  have  warranted 
the  whole  lot  and  every  part  of  it  against  eviction. 

Could  Ezekiel  Hall,  in  that  case,  recover  damages  for  the 
part  not  evicted  ?  (<?)  It  would  seem  he  could  not.  If  so,  he 
could  afterwards  maintain  an  action  on  the  same  covenant, 
when  evicted  of  the  residue  or  of  another  part,  and  so  for 
every  parcel  on  eviction  ;  so  that  an  action  lies  on  the  cove- 
nant for  every  eviction  which  has  happened  at  the  time  of 
suing  on  the  covenant. 

If  this  be  so,  then  it  is  no  objection  to  the  present  action 
that  the  defendants  may  thereby  be  subjected  to  several  actions 
on  the  same  covenant,  in  respect  to  several  parts  of  the  lands 
warranted. 

It  seems,  also,  to  be  clear,  in  the  case  of  a  lease  for  a  term  of 
years,  that,  where  the  lessor,  after  the  making  of  the  lease, 
grants  the  reversion  to  another  for  life,  this  grantee  of  only 
part  of  the  estate  (^d)  of  the  lessor  may  take  advantage  of  a 
condition,  and  consequently  of  a  covenant,  in  the  first  lease. 
He  shall  have  the  benefit  of  the  covenant  for  payment  of  rent, 
repairs,  &c.,  made  by  the  lessee  with  the  lessor.  In  this  case, 
however,  the  covenants  are  not  divided ;  one  action,  only,  is 
brought.  But,  if  the  lessor  grant  the  reversion  to  two  as 
tenants  in  common,  each  may  sue  on  the  covenants  of  lessee, 
or  both  may  join.     3  Wentworth,  490. 

(a)  They  are  no  otherwise  prejudiced  by  the  action  by  Ezekiel  Hall 
than  if  the  suit  were  prosecuted  by  his  grantor,  E.  H.,  Sr.    4  Cruise,  24. 
(6)  See  1  T.  R.  671. 

(c)  Semble  not,  5  Johns.  49,  54. 

(d)  2  Selw.  420,  n.  30;  Co.  Litt.  215  a. 

In  note  30,  2  Selw.  421,  it  is  said,  grantee  of  part  of  the  reversion  (two 
acres,  parcel  of  four)  cannot  enter  for  condition  broken  (in  lease  between 
lessor  and  lessee),  because  conditions  cannot  be  apportioned  by  act  of  the 
party. 

See  2  Selw.  420;  3  T.  R.  398.  Condition  is  entire.  Com.  Dig.  Condi- 
tion, O.;  2  Shep.  147. 


392  CHESHIRE. 


Hall  V.  Stone. 


But  it  is  said,  4  Cruise,  74,  (a)  that  a  grantee  of  part  of  the 
reversion  shall  not  take  advantage  of  a  covenant  made  by  the 
lessee  with  lessor.  The  whole  reversion  consists  of  three 
acres ;  two  are  granted  to  one,  and  one  to  another,  or  the  one 
acre  remains  in  lessor  ;  the  covenants  are  destroyed.  It  would 
be  unreasonable  to  compel  the  lessee  to  pay  the  whole  rent  to 
each  assignee  or  the  owner  of  each  part.  How  shall  the  rent 
be  apportioned  so  that  the  lessee  may  pay  each  his  share  ? 
And,  even  when  apportioned,  he  is  subjected  to  the  inconven- 
ience of  paying  his  rent  to  two  persons  instead  of  one.  This 
last  inconvenience  applies  to  the  present  case  with  equal  force. 
But  here  the  covenants  between  defendants  and  E.  H.,  the 
elder,  are  not  destroyed  by  the  conve3^ance,  by  Ezekiel  Hall,  of 
part  to  E.  H.,  Jr. 

Perhaps  assignee  of  part  only  of  the  lands  demised  is  not 
liable  to  the  lessor  on  the  covenants  of  lessee,  for  payment  of 
rent,  the  whole  rent,  {b}  But  the  question  here  is,  whetiier 
assignee  of  part  can  take  advantage  of  the  covenants  of  him 
who  bound  himself  to  warrant  the  whole,  and  his  part  is  that 
in  respect  of  which  the  covenantee  is  liable. 

Comyns  (Digest,  Covenant,  B.  3)  says  covenant  lies  by  an 
assignee  of  part  of  the  estate  demised,  or  the  assignees  of  sev- 
eral j)arts  may  join.  This  must  mean  several  parcels,  and  is 
in  point. 

The  only  person  interested  in  the  covenant  for  the  breach 

(a)  Co.  Litt.  21.5  a.  So  G.  Bacon,  Covenant,  E.  6;  Stat.  3'2  II.  VIII. 
c.  34,  does  not  extend  to  grantees  in  the  reversion  in  part  of  the  hmd. 
Co.  Litt.  215  a  ;  Cro.  Eliz.  833;  Co.  Litt.  21.5  b  and  a,  1. 

(b)  This  would  be  unjust.  Cowp.  678.  Yet  he  is  liable  to  repair  the 
buildings,  fences,  &c.,  on  his  part.  This  is  just.  Doug.  187  (3  VVils.  29; 
2  G.  Bacon,  71).  This  was  covenant  by  lessee  to  repair,  lessor  finding 
timber;  defendant,  assignee,  was  assignee  of  only  part  of  the  premises  in 
the  lease.  3  Woodd.  187,  n.  I.  Indeed,  Wooddeson  intimates  that  assign- 
ment of  whole  interest  in  parcel  subjects  assignee  to  action;  by  same  rule 
the  remedy  must  be  mutual.     Doug.  187,  n.  59. 

General  principle:  assignee  of  the  parcel  entitled  or  liable  may  sue 
and  be  sued.  Com.  Dig.  Covenant,  C.  3.  Here  plaintiff  is  assignee  of  the 
part  evicted;  consequently  entitled. 

Covenant  to  repair  is  divisible,  and  will  bind  assignee  of  parcel  quoad 
the  repairs  of  such  parcel.     2  Sehv.  429. 


DECEMBER   TERM,  1815.  393 

Hall  V.  Stone. 

now  assigned  is  plaintiff.  Why  should  not  action  lie  in  his 
name?  What  prejudice  to  defendants  ?  Why  action  in  the 
name  of  Ezekiel  Hall? 

It  must  be  admitted,  defendant's  covenant  extends  to  every 
part  of  the  land ;  but  the  question  is,  does  it  extend  to 
grantee  of  every  parcel? 

Greenly  <^  Kellogg^  adm'rs  of  Kellogg^  v.  Wilcocks,  2  Johns. 
1.  Covenant.  Wilcocks  conveyed  to  Pollock  certain  lots; 
covenant  with  Pollock,  his  heirs  and  assigns,  that  Wil- 
cocks seised,  &c.  Pollock  conveyed  to  H.  one  of  the  lots, 
and  H.  to  the  intestate,  Kellogg.  Breach :  Wilcocks  not 
seised  of  the  lot  (sold  the  plaintiff).  Kellogg  evicted.  It 
was  held,  on  demurrer,  that  the  assignee  could  not  maintain 
the  action.     The  objection  now  made  was  not  mentioned. 

It  seems  this  covenant  of  defendants  runs  with  the  land  at 
common  law.  The  statute  of  Henry  VIII.  was  made  in  favor 
of  reversioners. 

Could  not  defendants  have  been  vouched  (they  were  called 
upon)  by  Kinsley  ?  That  is  in  the  nature  of  a  suit.  They 
were  liable  in  ivarrantia  chartce.  If  so,  they  are  liable  in 
covenant,  which  comes  in  lieu  of  voucher  and  ivarrantia 
chartce,  and  indeed  is,  in  many  cases,  extended  further.  Com. 
Dig.,  Guaranty  [Warranty  ?j  C.  ;  Co.  Litt.  385  a,  215  h,  n.  1. 
Shep.  195,  shows  that  assignee  of  parcel  of  the  land  (though 
not  of  part  of  the  estate)  may  vouch,  and  summon  [?]  to 
warrant,  warrantor  of  whole,  (a)  Though  some  difficulty  in 
ap})lying  the  English  cases,  which  are  of  leases  and  reversions, 
and  under  statute  Henry  VIII.,  yet  I  conclude  that  assignee 
of  part  of  the  lands  conveyed  may  vouch  grantor  who  war- 
ranted the  part  with  other  lands,  and,  consequently,  may  main- 
tain covenant. 

2  G.  Bacon,  71.  Lessor  may  have  covenant  against  the  as- 
sio-nee  of  one  parcel  to  repair.  The  covenant  is  divisible  and 
follows  the  land,  (h)     So  if  lessor  had  granted  the  reversion 

(a)  Booth,  49,  53.  Vouchee  may  counterplead  that  he  is  to  warrant 
but  a  part  of  the  land. 

(h)  Why  does  not  this  covenant  follow  the  land  and  every  parcel? 
Perhaps  this  is  the  only  parcel  as  to  which  title  fails. 


394  CHESHIRE. 


Hall  V.  Stone. 


of  part  to  one,  and  of  another  part  to  another,  they  might 
have  brought  covenant.  Judgment  on  verdict,  (a)  ^ 

(a)  Am.  Prec.  25G,  n.  Assignee  of  distinct  part,  as  one  of  two 
lots,  &c.,  of  the  land  warranted,  may  sue;  but  ^uccre  if  one  lot?  Cases 
cited. 

1  "  Of  the  division  of  the  remedy,  on  covenants  for  title  which  run  with 
the  land. 

"  The  ownership  of  the  land  to  which  covenants  are  incident  does  not, 
of  course,  remain  in  all  cases  undivided.  Mr.  Preston  (3  Prest.  Abs. 
57,  58)  was  of  the  opinion  that,  when  property  is  divided  by  sales,  the 
purchaser  loses  the  benefit  of  the  former  covenants.  'Thus,'  he  says, 
'  when  a  man  sells  two  farms  to  A.,  covenanting  with  him,  his  heirs  and 
assigns,  and  one  of  the  farms  is  sold  by  A.  to  B.,  B.  can  never  sue  on  the 
covenants,  as  this  would  subject  the  covenantor  to  several  suits.'  Sir 
Edward  Sugden  (Sugd.  Vend.  &  P.  508)  has  controverted  this  doctrine; 
and  it  seems  to  be  both  in  conflict  with  authority  and  contrary  to  princi- 
ple.    For, 

"  First.  It  is  not  certain  that  the  covenantor  will  be  subjected  to  more 
than  one  suit.  If  A.  sells  land  to  B.,  who  sells  it  again,  one  half  to  C, 
the  other  to  D.,  in  the  event  of  a  breach  of  the  covenants,  both  C.  and  D. 
mai/  elect  to  proceed  against  B.,  who  will  then  recover  over  against  A.  in 
a  single  suit.  But  if  A.  was  not  primarily  liable  to  C.  and  D.,  then, 
according  to  previous  discussion,  he  would  not  be  liable  to  indemnify  B., 
which  is  absurd. 

"  Second.  The  very  nature  of  the  covenants  implies  that  there  7nay  be 
several  actions  on  them.  There  may  be  several  interruptions  from  distinct 
causes  of  the  quiet  enjoyment,  for  each  of  which  a  separate  action  will  lie ; 
or  the  covenant  of  warranty  may  be  broken  by  successive  evictions  from 
portions  of  the  land,  under  distinct  claims,  for  each  of  which  an  action 
may  be  had  for  damages  pro  tanto. 

"  Third.  Future  subdivisions  may  fairly  be  presumed  to  be  contem- 
plated when  the  covenants  are  entered  into. 

"  Fourth.  The  ancient  warranty,  for  which  tlie  covenants  for  title  were 
substituted,  was  apportionable.     (Jo.  Litt.  309. 

"  In  Dougherty  v.  DeicaWs  Heirs,  9  B.  Mon.  57,  it  was  held  that  a 
remote  grantee  of  only  a  part  of  the  land  may  maintain  an  action  in  his 
own  name  against  the  first  grantor,  for  his  proportion  of  the  covenant 
remedy.  To  the  same  effect  is  the  decision  in  Astor  v.  Miller,  2  Paige, 
68.  In  Dickinson  v.  Hoome's  Adm'r,  8  Gratt.  40(5,  the  same  rule  is 
adopted.  It  is  said  that  '  as  covenants  that  run  with  the  land  are  as.sign- 
able  because  the  land  itself  is  assignable,  so  also  it  would  seem  that  the 
covenants  are  apportionable,  because  the  land  itself  is  apportionable.' 
"  Other  cases  have  recognized  this  doctrine,  which  may  now  be  regarded 


DECEMBER   TERM,  1815.  395 

Hall  V.  Stone. 

as  a  settled  rule  of  law.  It  is  uncertain  how  far  the  same  rule  applies, 
when,  not  the  land  itself,  but  the  estate  in  the  whole  land  is  divided,  as 
when  one  has  a  life  estate,  and  another  the  remainder,  in  land.  There  is 
no  doubt  but  that  all  the  partial  owners  may  join  in  a  common  action  on 
the  covenants,  to  secure  their  respective  rights.  3  M.  &  S.  409.  But 
this  is  not  always  practicable.  It  is  understood  to  be  the  doctrine  of  the 
English  courts,  that  any  partial  owner  of  an  estate  may  separately  recover 
for  the  special  damage  to  his  interest  in  the  land,  arising  from  a  breach  of 
the  covenants  (Dart,  Vend.  366  ;  9  Jarra.  Conveyancing,  401;  2  Sim. 
343;  2  B.  &  A.  105;  1  M.  &  S.  355;  4  id.  53;  Rawle,  Gov.  Tit.  343);  just 
as  a  lessee  and  a  reversioner  of  land  may  sue  separately  for  the  injury  to 
their  respective  rights  from  a  trespass  to  the  land.  The  current  of  Amer- 
ican authority,  so  far  as  the  question  has  arisen,  is  in  an  opposite  direc- 
tion. In  St.  Clair  v.  Williams,  7  Ohio,  2d  part.  111,  and  also  in  Tapscott 
V.  Williams,  10  Ohio,  442,  the  distinction  is  taken  between  a  division  of 
the  land  and  a  division  of  the  estate,  and  while  it  is  said  that  each  party 
may  sue  separately  in  the  former  case,  it  is  held  to  be  otherwise  in  the 
latter  case.  These  same  views  are  entertained  in  the  later  case  of  McCtare 
v.  Gamble,  27  Pa.  St.  288.  The  reasons  for  the  distinction  are  not  per- 
fectly obvious,  and  the  rule  is  open,  to  a  great  extent,  to  the  same  objec- 
tions, in  Mr.  Preston's  view,  in  case  of  a  division  of  the  land  itself. 
However  the  rule  may  be  ultimately  settled,  there  are  certainly  some 
advantages  in  permitting  separate  actions,  which  may  be  sufficient  to 
counterbalance  any  supposed  inconvenience  to  the  covenantor.  In  White 
V.  Whitney,  3  Met.  87  (before  referred  to),  C.  J.  Shaw  says,  in  substance, 
that,  if  two  parties  own  distinct  interests  in  an  estate  derived  from  a 
common  grantor,  the  one  as  a  mortgagee,  the  other  as  a  purchaser  of  the 
equity  of  redemption,  both  parties  will  be  entitled  to  the  benefit  of  the 
common  grantor's  covenants,  according  to  their  respective  interests.  It  is 
suggested,  however,  that,  in  case  suit  were  to  be  brought,  before  either 
foreclosure  or  redemption,  there  might  arise  some  question  as  to  the 
method  of  proceeding." 

From  a  Prize  Essay  at  the  Harvard  Law  School,  on  "Covenants  for 
Title  running  with  the  Land,"  written  by  the  late  Thomas  A.  Henderson, 
of  the  class  of  1861,  printed  in  2  Am.  Law  Reg.  (n.  s.)  193-211,  257-274. 

In  support  of  Hall  v.  Stone,  see  also  Sugd.  Vend.  &  P.  [598],  8th  Am. 
ed.  vol.  2,  269;  Rawle,  Cov.  Tit.  3d  ed.  354,  355;  and,  besides  author- 
ities there  cited,  see  Simpson  v.  Clayton,  1838,  4  Bing.  N.  C.  758,  780. 


396  CHESHIRE. 


Bryant  v.  Ela. 


William  Bryant  v.  Benjamin  Ela. 

An  action  was  commenced  in  Vermont  against  a  citizen  of  New  Hampshire ;  the 
defendant's  property  in  Vermont  was  attaclied,  and  a  notice  left  at  liis  house 
in  New  Ilampsiiire ;  but  tliere  was  no  personal  service  on  him  in  Vermont. 
The  defendant  appeared,  and  put  in  a  plea  to  the  jurisdiction,  alleging  that  he 
was  an  inhabitant  of  New  Hampshire,  and  that  the  property  attached  was  not 
liis.  The  plaiTitiff  replied,  that  the  property  was  defendant's.  This  issue  hav- 
ing been  found  for  plaintiff,  it  was  decided  that  the  court  had  jurisdiction. 
The  defendant  then  pleaded  to  the  merits,  upon  which  judgment  was  rendered 
against  him. 

Held,  that  the  Vermont  court  had  no  jurisdiction  over  the  defendant,  to  render 
judgment  for  any  other  purpose  than  as  affects  the  property  attached  ;  that 
the  Vermont  suit  was,  in  its  nature,  a  proceeding  in  rem ;  that  the  defend- 
ant's appearance  did  not  change  it  into  a  suit  in  personam,  nor  enlarge  the 
jurisdiction  ;  and  that  the  Vermont  judgment  could  not  be  enforced  in  New 
Hampshire. 

A  judgment  rendered  in  Vermont  in  a  qui  lam  action,  for  penalties  incurred  by  a 
violation  of  the  usury  statute  of  that  State,  will  not  be  enforced  in  New  Hamp- 
shire, though  the  Vermont  court  had  jurisdiction  over  the  defendant,  and  the 
judgment  was  good  in  Vermont. 

This  was  debt  on  a  judgment  recovered  in  the  Supreme 
Court  of  Judicature  of  the  State  of  Vermont,  third  Tuesday  of 
August,  1813. 

The  defendant  pleaded  nil  debet,  on  which  issue  was  joined. 

The  plaintiff  offered  in  evidence,  to  prove  the  issue,  a  duly 
authenticated  copy  of  the  judgment  declared  on,  comporting 
with  the  declaration,  excepting  that  the  declaration  stated  that 
Bryant  recovered  judgment,  and  the  record  was  of  a  judgment 
recovered  by  Bryant  and  the  treasurer  of  the  State  of  Ver- 
mont, (a) 

From  the  record  offered  in  evidence,  it  appeared  that  the 
original  writ,  which  issued  March  21,  1811,  was  an  attachment. 
The  defendant  was  called  of  Lebanon,  in  the  County  of  Graf- 
ton, and  State  of  New  Hampshire  ;  and  the  plaintiff,  of  Cor- 

(a)  [There  is  here  a  note  on  the  question  of  variance  between  the 
declaration  and  the  record.  In  the  view  afterwards  taken  by  the  Court, 
this  question  did  not  become  material.] 


DECEMBER   TERM,   1815.  397 

Bryant  v.  Ela. 

nish,  in  the  County  of  Cheshire,  and  State  of  New  Hampshire, 
who  sues  as  well  for  himself  as  for  the  treasurer  of  the  State  of 
Vermont. 

The  declaration  was  in  debt ;  in  substance,  that  on  Feb.  19, 
1805,  at  Woodstock,  in  the  County  of  Windsor,  and  the  State 
of  Vermont,  plaintiff  borrowed  of  defendant  $1,500,  on  this 
corrupt  agreement,  against  the  statute,  viz.  that  defendant 
should  give  day  of  payment  till  June  1,  1807  ;  the  plaintiff 
then  to  pay  the  sum  loaned,  and  $569.40  for  forbearance 
(between  16  and  17  per  cent).  The  payment  of  these  sums 
was  secured  by  deed  made  by  James  and  Shubael  Converse, 
conveying  to  defendant,  in  fee,  a  farm  in  Randolph,  in  Ver- 
mont, which  plaintiff  had  before  conveyed  to  them,  and  which 
they  held  for  plaintiff's  benefit ;  and  defendant,  at  the  same 
time,  executed  a  bond  to  plaintiff,  conditioned  to  re-deed  and 
convey  the  farm  to  him,  on  payment  of  said  sums  on  June  1, 
1807  ;  defendant  did,  on  said  Feb.  19,  1805,  give  plaintiff  day 
of  payment,  for  said  sum  of  $1,500,  to  June  1,  1807  ;  .and  plain- 
tiff then  and  there,  viz.  July  1,  1807,  paid  to  defendant  said 
sum  of  $569.40,  for  the  forbearance,  which  is  $363.84  more 
than  lawful  interest,  and  also  paid  the  principal  sum,  all  in  per- 
formance of  said  corrupt  agreement ;  and  defendant  accepted 
the  same  accordingly,  against  the  form,  &;c.,  of  the  statute, 
&c.  ;  the  said  sum  of  $569.40  exceeds  the  value  and  rate  of 
6  per  cent,  contrary  to  the  form,  &c.,  of  the  statute  ;  by  reason 
whereof,  and  by  force  of  the  statute,  &c.,  an  action  hath  accrued 
to  the  plaintiff,  who  sues  as  aforesaid,  to  recover  of  defendant, 
for  the  said  treasurer  and  himself,  the  whole  of  the  usurious 
part  of  said  contract,  being  $363.84,  and  25  per  cent  per 
annum  on  the  whole  sum  of  said  contract,  being  $856.25, 
amounting  in  the  whole  to  $1,220.09  ;  yet  defendant,  though 
requested,  hath  not  paid  said  sum  ;  to  the  damage  of  the  plain- 
tiffs, as  they  say,  $2,000. 

The  service  was  at  Hartford,  in  Vermont,  March  22,  1811, 
by  attachment  of  two  old  barrels  and  one  certain  piece  of  land 
deeded  by  Jacob  Clifford,  Jr.,  to  defendant,  turned  out  to 
deputy  sheriff  by  plaintiff,  as  the^property  of  defendant,  together 
with  all  the  land  in  said  Hartford,  in  the  State  of  Vermont. 


398  CHESHIRE. 


Bryant  v.  Ela. 


On  March  23,  1811,  true  attested  copy  of  writ  and  return  was 
left  with  town-clerk  of  Hartford,  for  record  ;  and,  Aug.  30, 
1811,  like  copy  left  with  defendant's  wife,  at  his  usual  place  of 
abode  at  Lebanon,  N.  H. 

The  writ  was  returnable  to  the  County  Court,  at  Woodstock, 
third  Monday,  September,  1811. 

It  is  stated  in  the  record  that  the  cause  came  to  the  Supreme 
Court  at  August  Term,  1812,  by  appeal  from  a  judgment 
rendered  at  the  County  Court  (it  does  not  say  at  what  Term), 
in  favor  of  defendant,  upon  the  plea  of  jurisdiction  of  said 
court. 

The  plea  to  the  jurisdiction,  which  appears  in  the  record, 
was  put  in  by  C.  Marsh,  at  August  Term,  1812,  of  the  Supreme 
Court,  when  and  where  both  parties  appeared.  In  was,  in 
substance,  that  the  plaintiff,'  at  the  time  of  the  commencement 
of  said  action,  was,  and  ever  since  has  been,  an  inhabitant  of, 
and  resident  at,  Cornish,  in  the  County  of  Cheshire,  in  the 
State  of  New  Hampshire,  and  that  the  defendant,  at  the  time 
aforesaid,  was,  and  ever  since  has  been,  an  inhabitant  of,  and 
resident  at,  Lebanon,  in  the  County  of  Grafton,  in  the  State  of 
New  Hampshire,  and  might  have  been  attached  by  his  prop- 
erty or  person  at  the  suit  of  the  plaintiff  in  the  said  suit ;  and 
that  the  articles  attached  on  the  original  writ,  &c.,  were  not 
the  property  of  the  defendant ;  wherefore  he  says  that  the 
jurisdiction  of  said  cause  belongs  to  the  Court  of  Common 
Pleas,  in  the  Counties  of  Grafton  and  Cheshire,  &c.,  and  not  to 
this  honorable  Court;  and  therefore  prays  that  the  said  Court 
here  would  not  take  further  jurisdiction  of  the  said  cause,  but 
dismiss  the  same,  (a) 

The  plaintiff,  by  J.  H.  Hubbard,  replied,  that  the  articles 
attached  and  the  lands  described,  &c.,  were  the  property  of  the 
defendant. 

(a)  This  not  a  proper  plea  to  jurisdiction.  Semble,  that  plea  always 
shows  some  other  court  in  the  State  which  has  jurisdiction  (this  doctrine 
goes  on  the  ground  that  New  Hampshire  and  Vermont  are  independent 
States  —  nations)  ;  this  is  rather  in  bar,  that  no  court  (by  which  is  always 
meant  no  court  in  the  State)  can  sustain  any  action  for  this  cause. 
11  Manuscript  Reports,  116. 


DECEMBER   TERM,  1815.  399 

Bryant  v.  Ela. 

On  this,  issue  was  joined,  and  found  for  plaintiff. 

It  was  considered  that  the  Court  have  jurisdiction,  and  a 
new  plea  was  awarded,  and  the  cause  continued  to  August 
Term,  1813,  when  both  parties  appeared,  and  the  defendant, 
by  his  said  attorney,  pleaded  nil  debet,  on  which  issue  was 
joined.  The  verdict  of  the  jury  was,  that  the  defendant  does 
owe  to  the  plaintiff  and  the  said  treasurer,  in  manner  and  form 
as  the  plaintiff,  in  his  declaration,  has  alleged ;  they  therefore  find 
for  the  plaintiff  and  the  said  treasurer  the  said  debt  and  cost. 

A  motion  was  made  for  a  new  trial :  1.  Because  the  decla- 
ration is  insufficient  in  law  ;  2.  Because  the  jury  mistook  the 
law,  not  having  found  the  sum  given  by  the  statute,  on  the 
facts  stated  in  the  declaration  or  proved  on  the  trial.  This 
motion  was  overruled;  and  judgment  rendered  that  plaintiff 
and  the  said  treasurer  recover  $1,220.09,  and  costs  taxed  at 
$133.52,  whereof  the  plaintiff  may  have  execution. 

The  defendant  objected  to  this  record  being  received  in  evi- 
dence, because  there  was  a  material  variance  between  it  and 
the  declaration  ;  (a)  and  because  the  judgment  was  a  nullity, 
wholly  void  in  law,  the  court  in  Vermont  not  having  any 
jurisdiction  in  the  cause.  (6)  It  was  rejected  by  the  judge, 
subject  to  the  opinion  of  the  Court  on  its  admissibility,  and  a 
verdict  taken  for  defendant. 

The  parties   agreed    that   both  parties    were,  at  the  com- 

(a)  What  were  the  variances?  Were  they,  1st.  That,  in  declaration, 
plaintiff  omits  the  treasurer  ;  2d.  In  declaration,  parties  are  described  as 
inhabitants  of  Vermont? 

(6)  And  generally  not  competent  evidence  to  be  received  in  support  of 
the  action. 

Bissel  V.  Briggs,  9  Mass.  464.     Nil  debet  good  plea.     /(/.  469. 

It  seems  the  Court,  on  nil  debet,  look  into  the  judgment,  when  offered 
to  support  the  action,  and  examine  the  whole  record,  so  as  to  see  whether 
the  Vermont  court,  or  we,  have  jurisdiction  in  respect  of  the  subject- 
matter  or  parties. 

Two  objections  to  the  judgment  as  evidence,  on  the  score  of  jurisdic- 
tion: 1st.  Vermont  court  had  no  jurisdiction  over  these  parties,  under 
circumstances  of  this  case.  2d.  We  have  none,  as  it  respects  the  subject- 
matter  of  this  suit,  looking  at  the  original  cause  of  action. 


400  CHESHIRE. 


Bryant  i;.  Ela. 


raencement  of  the  suit  in  Vermont,  and  ever  since  have  been, 
inhabitants  of,  and  residents  in,  this  State,  and  not  in  Ver- 
inont.  (a) 

Smith,  C.  J.  By  the  pleadings  (the  plaintiff  not  demiiiring 
to  the  plea  of  nil  debet)  it  seems  to  be  admitted  that  this 
record  is  not  to  have  the  same  effect  as  a  record  of  a  judgment 
of  a  court  of  competent  jurisdiction  in  this  State,  or  as  the 
same  record  would  have  if  shown  in  pleading  in  Vermont,  (6) 
In  either  of  these  cases,  the  record  would  conclude  the  ques- 
tion of  jurisdiction,  as  well  as  every  other  question. 

We  are  called  upon  to  carry  into  effect,  in  this  State,  a  judg- 
ment rendered  against  one  of  our  citizens  in  favor  of  another 
in  the  State  of  Vermont.  The  defendant  appeared  in  that 
suit,  and  defended,  and  the  record  discloses  no  facts  from 
which  we  are  warranted  in  supposing  that  the  merits  were 
not  fairly  tried.  Still,  if  the  Court  had  no  jurisdiction,  and 
this  question  is  now  open  to  us,  the  record  must  be  rejected, 
and  the  plaintiff  must  resort  to  the  original  cause  of  action,  if 
he  ever  had  any  such  which  could  be  enforced  in  this  State. 

I  take  the  law  of  nations  to  be  this :  that  citizens  of  New 
Hampshire  are  exempt  from  any  jurisdiction,  civil  or  criminal, 
to  be  exercised  by  the  courts  of  Vermont ;  they  are  amenable 
only  to  the  courts  of  New  Hampshire. 

If  a  citizen  of  Vermont  is  injured  by,  or  has  a  demand  upon, 
a  citizen  of  New  Hampshire,  he  must  apply  for  redress  to  the 
courts  of  New  Hampshire,  which  are  equally  open  and  sup- 
posed to  be  indifferent  to  foreigner  or  native  ;  so,  vice  versd 
(Collect.  Jurid.  102),  if  a  citizen  here  is  wronged  by  a  per- 
son living  in  Vermont,  he  ought  to  apply  for  redress  in  the 
Vermont  courts  of  justice. 

The  courts  of  Vermont  are  at  least  as  much  limited  in  the 
exercise  of  their  jurisdiction  as  the  legislature  of  Vermont ; 
the  one  legislates  for  the  territory,  and  the  other  administers 

(a)  The  record  shows  this. 

(6)  Supposing  the  common  law  of  Bngland  to  have  been  adopted  in 
Vermont.  It  is  believed  to  have  been  adopted  in  every  State  in  the 
Union. 


DECEMBER   TERM,  1815.  401 

Bryant  v.  Ela. 

justice  to  its  citizens  and  subjects.  The  law  of  nations  forms 
a  part  of  the  law  of  Vermont,  and  of  this  State,  and  every 
independent  State.  Wo.  El.  Jur.  158.  By  that  law  the  courts 
of  one  State  are  prohibited  from  entertaining  suits  against 
the  citizens  of  any  other  independent  State.  Nations  are 
like  individuals  in  a  state  of  nature.  Vattel,  p.  2.  One  can- 
not bind  the  other  by  its  acts,  legislative,  executive,  or  judi- 
cial. It  cannot  coerce  the  citizens  of  another  independent 
State. 

But  the  rule  which  has  been  mentioned  applies  only  where 
the  citizens  and  subjects  of  each  State  remain  within  their  ter- 
ritorial limits.  If  the  citizen  of  one  State  go  into  the  territory 
of  another  independent  State,  and  there  commit  an  offence 
against  the  State,  or  do  an  injury  to  any  of  its  citizens,  he  is 
punishable  and  answerable  in  the  same  manner  as  if  he  were 
a  subject  of  such  State,  (a)  The  permission  to  enter  the  ter- 
ritory of  an  independent  State  is  upon  this  tacit  condition, 
that  he  be  subject  to  the  laws.  Vattel,  B.  2,  §  101,  pp.  153, 154, 
156,  94,  108,  109,  &c.  (6)  The  laws  govern  all  persons  within 
the  State,  whether  citizens  or  foreigners.  If  any  dispute 
arises  between  such  foreigner  and  a  citizen,  it  must  be  ter- 
minated by  the  judge  of  the  place,  and  also  according  to  the 
laws  of  the  place.  Vattel,  B.  2,  §  103.  When  a  person 
voluntarily  goes  into  another  State,  he  submits  himself  to  the 
laws  of  such  State,  and  to  be  judged  by  the  courts  of  such 
State.  He  may  be  arrested  for  offences  against  the  State,  and 
tried.  So  he  may  be  sued  by  any  one  who  lias  any  just  claim 
upon  him  ;  and  the  judge  of  the  place  where  he  is  found  has 
jurisdiction,  (c)     But  if  he  be   not  proceeded  against  whilst 

(a)  Wo.  El.  Jur.  111.  When  a  stranger  sojourns  in  another  country, 
it  is  always  tacitly  implied  that  he  be  subject  to  the  municipal  laws  where 
he  resides,  amenable  to  the  courts  of  justice,  and  submissive  to  their 
sentence. 

See  Vattel,  B.  1,  §§  4,  17,  158-176,  212,  &c.,  232. 

(b)  The  case  of  ambassadors  is  an  exception  to  the  general  rule. 
Vattel,  B.  4,  §  110,  p.  160,  vol.  2;  Wo.  El.  Jur.  118. 

(c)  It  belongs  to  every  sovereign  State  to  exercise  justice  in  all  parts 
within  its  territory,  to  take  cognizance  of  the  crimes  committed  and  civil 

26 


402  CHESHIRE. 


Bryant  i'.  Ela. 


witliin  the  State,  but  be  suffered  to  return  to  his  own  State, 
then  the  rule  of  the  law  of  nations  is,  that  for  any  civil  injury 
the  party  must  be  prosecuted  before  his  judge,  who  alone  has 
a  right  to  constrain  or  condemn  him.  His  judge  is  the  judge 
of  the  place  where  he  has  his  domicile  ;  the  judge  of  the  State 
of  which  he  is  a  citizen. 

No  independent  State  would  tolerate  the  idea  that  one  of 
its  citizens  or  subjects  should  be  coerced  by  a  foreign  tribunal 
whilst  he  remained  at  home. 

The  service  here  of  process  issuing  from  a  foreign  State  is  a 
contempt  of  the  laws  and  sovereignty  of  this  State ;  and  it 
would  be  a  most  impudent  thing  to  call  on  our  courts  to 
enforce  the  judgment  or  decree  of  a  foreign  State  against  one 
of  our  citizens. 

In  case  one  of  our  citizens  shall  have  committed  a  crime  in 
another  State,  it  may  be  proper  to  surrender  him  on  applica- 
tion of  the  supreme  power  of  such  State,  that  he  may 
be  tried  and  punished  where  the  offence  was  committed. 
But  he  cannot  be  forcibly  taken  from  this  State ;  or  tried 
in  the  State  where  the  offence  was  committed,  till  he  is 
found  or  brought  there,  (a)  The  person  of  the  offender  — 
one  who  has  done  a  civil  injury  —  being  found  in  any  State, 
gives  the  courts  of  that  State  jurisdiction  over  him  for  all 
crimes  committed  there,  and  all  civil  injuries  which  were 
committed  there,  or  which  may  be  prosecuted  anywhere,  in  any 
place  ;  such  as,  according  to  the  usages  of  nations,  follow  the 
person.  Here  the  jurisdiction  of  the  cause  is  acquired  by  the 
person  coming  within  the  State  ;  by  his  residence  there  for 
however  short  a  time.  (5) 

injuries  ari.sing  within  it.  Vattel,  B.  2,  §  84.  Other  nations  are  bound 
to  respect  this  right;  even  the  State  to  which  the  defendants  belong. 

Every  thing  done  by  the  judge  of  the  place,  within  the  extent  of  his 
power,  is  binding  everywhere.      Vattel,  B.  2,  §  85 . 

(a)  He  cannot  be  punished  elsewhere  than  in  the  place  where  the  crime 
was  committed.     Vattel,  B.  1,  §§  232,  233. 

(b)  Perhaps  there  is  a  distinction  of  this  sort,  —  that  a  person  is  always 
liable  to  be  sued  for  civil  injuries,  and  on  contracts  in  his  own  country  or 
the  place  of  his  domicile;  but  that  he  is  only  liable  to  be  sued  where  he  is, 
or  is  found,  —  out  of  his  own  country,  —  for  some  matter  tiiere  [  ?]  then 
(suddenly)  arising.     Vattel,  vol.  1,  p.  154,  B.  2,  §  103. 


DECEMBER   TERM,  1815.  403 

Bryant  i;.  Ela. 

But,  by  the  law  of  nations,  it  is  apprehended,  the  courts  of 
a  State  sometimes  acquire  jurisdiction  of  a  cause  in  respect  of 
property  found  or  lawfully  brought  within  its  limits.  The 
jurisdiction  of  courts  of  admiralty  to  judge  of  and  condemn 
goods  captured  from  an  enemy  during  a  war,  or  lawfully  seized 
on  the  high  seas,  or  on  land  under  certain  circumstances, 
depends  on  this  principle.  The  court  of  the  nation  to  which 
the  captor  belongs  has  exclusive  jurisdiction.  Coll.  Jurid. 
100. 

So  it  is  clear  that  all  disputes  concerning  lands  in  any  State, 
though  owned  by  the  subject  of  another  independent  State, 
can  only  be  decided  in  the  State  where  the  lands  lie  ;  and  so 
as  to  all  rights  annexed  to  lands.  No  sovereign  State  will 
permit  others  to  intermeddle  with  what  belongs  to  its  terri- 
tory. 

He  who  purchases  lands  in  another  State  may  well  be  pre- 
sumed to  have  agreed  that  the  laws  of  the  State  where  they 
are  situated  shall  govern  as  to  the  transfer  of  them,  either  by 
the  rules  of  descent,  or  by  instruments  executed  by  the  owner, 
cff  by  involuntary  transfer,  such  as  by  forfeiture,  or  extent,  or 
levy  of  execution,  &c.  The  courts  of  the  State  where  the 
lands  are  situated  have  jurisdiction  in  every  thing  relating  to 
such  lands,  and  their  decisions  are  to  be  respected  everywhere 
else. 

And,  though  I  find  little  in  the  law  of  nations  on  the  sub- 
ject, I  see  no  reason  why  the  courts  of  the  State  should  not 
have  jurisdiction  over  movables,  or  personal  property,  found 
in  the  limits,  as  well  as  over  the  person  of  the  owner, 
when  the  latter  is  a  citizen  of  another  State  ;  proceeding  in 
such  case  according  to  the  municipal  laws  of  the  State  where 
the  property  is.  I  do  not  speak  of  the  rule  or  law  by  which 
heirs,  &c.  shall  succeed  to  such  personal  property  on  the  death 
of  the  owner,  or  how  testaments  shall  be  made ;  but  of  the 
municipal  regulations  of  some  States  which  allow  such  estate 
to  be  taken  for  the  debt  of  the  owner.  Vattel,  B.  2,  §§  103- 
110.  I  see  nothing  in  the  law  of  nations  against  such 
regulations.  But  then  the  jurisdiction  should  not  be  exercised 
beyond  the  property  which  conferred  the  jurisdiction. 


404  CHESHIRE. 


Bryant  v.  Ela. 


The  respect  which  is  due  to  judgments,  sentences,  and 
decrees  of  courts  in  a  foreign  State,  by  the  law  of  nations, 
seems  to  be  the  same  wliich  is  due  to  those  of  our  own  courts. 
Hence  the  decree  of  an  admiralty  Court  abroad  is  equally 
conclusive  with  decrees  of  our  admiralty  courts.  Indeed,  both 
courts  proceed  by  the  same  rule,  are  governed  by  the  same  law, 
—  the  maritime  law  of  nations:  Coll.  Jurid.  100;  which  is  the 
universal   law  of  nations,  except  where  treaties  alter  it. 

The  same  comity  is  not  extended  to  judgments  or  decrees 
which  may  be  founded  on  the  municipal  laws  of  the  State  in 
which  they  are  pronounced.  Independent  States  do  not 
choose  to  adopt  such  decisions  without  examination.  These 
laws  and  regulations  may  be  unjust,  partial  to  citizens,  and 
against  foreigners  ;  they  may  operate  injustice  to  our  citizens, 
whom  we  are  bound  to  protect ;  they  may  be,  and  the  decisions 
of  courts  founded  on  them,  just  cause  of  complaint  against  the 
supreme  power  of  the  State  where  rendered.  To  adopt  them 
is  not  merely  saying  that  the  courts  have  decided  correctly  on 
the  law,  but  it  is  approbating  the  law  itself.  Wherever,  then, 
the  court  may  have  proceeded  on  municipal  law,"  the  rule  is, 
that  the  judgments  are  not  conclusive  evidence  of  debt,  but 
primd  facie  evidence  onl3^  The  proceedings  have  not  the  con- 
clusive quality  which  is  annexed  to  the  records  or  proceedings 
of  our  own  courts,  where  we  approve  both  of  the  rule  and  of 
the  judges  who  interpret  and  apply  it.  A  foreign  judgment 
may  be  impeached  ;  defendant  may  show  that  it  is  unjust,  or 
that  it  was  irregularly  or  unduly  obtained.     Doug.  5,  n. 

I  think  it  cannot  be  doubted  that  the  framers  of  the  Con- 
federation ^  meant  something  when  it  was  declared,  as  in  the 
fourth  article,  "  that  full  faith  and  credit  shall  be  given  in 
each  of  the  States  to  the  records,  acts,  and  judicial  proceed- 
ings of  the  courts  and  magistrates  of  every  otiier  State." 
Some  credit  beyond  what  was  given  to  foreign  judgments  was 
intended.  The  paragraph  immediately  preceding  provides 
that  a  person  charged  in  one  State  with  crimes,  fleeing  from 
justice,  shall  be  delivered  up  by  the  State  in  which  he  may  be 

1  Articles  of  Confederation  ;  adopted  in  Congress,  July  9,  1778  ;  rati- 
fied and  carried  into  effect,  March  1,  1781. 


DECEMBER   TERM,  1815.  406 

Bryant  v.  Ela. 

found,  that  lie  may  be  tried  in  the  State  having  jurisdiction  of 
the  offence,  (a) 

•In  the  fourth  article,  §  1,  of  the  Constitution  of  the  United 
States,  the  words  are,  "  Full  faith  and  credit  shall  be  given  in 
each  State  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  State  ;  and  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and  proceed- 
ings shall  be  proved,  and  the  effect  thereof."  Congress  have 
accordingly  declared  that  records  and  judicial  proceedings,  au- 
thenticated as  the  act  requires,  shall  have  such  faith  and 
credit  given  to  them  in  every  court  within  the  United  States, 
as  they  have  by  law  or  usage  in  the  courts  of  the  State  from 
whence  the  said  records  are,  or  shall  be,  taken.     Vol.  1,  48. 

Now  this  clause  in  the  Constitution  was  entirely  without 
use,  object,  or  end,  unless  it  gave  to  the  judicial  proceedings 
of  the  several  States  more  faith  and  credit  than  they  then  had 
(before  1781).  They  were  then  prima  facie  evidence  of  debt, 
and  no  more.  They  were  conclusive  till  impeached  ;  but  they 
might  be  impeached.  Doug.  Appendix,  7.  Domestic  rec- 
ords could  not  be  impeached  ;  more  faith  and  credit  was  given 
to  them. 

When  it  is  said,  therefore,  that  full  faith  and  credit  shall  be 
given,  in  each  State,  to  the  judicial  proceedings  of  the  other 
States,  it  gives  them  all  the  credit  they  could  possibly  claim. 
But  still  they  are  judicial  proceedings  of  another  State  ;  and, 
except  so  far  as  the  Constitution  of  the  United  States  operates 
to  consolidate  the  States  into  one  body  politic,  the  States  re- 
main independent  sovereignties  as  it  respects  each  other. 

The  ground  and  reason  for  this  faith  and  credit  beyond 
what  is  given  to  foreign  States,  doubtless,  was  the  similarity 
of  laws  and  judicial  proceedings  in  the  several  States  which 
compose  the  Union.  The  municipal  laws  of  all  were  thought 
to  be  nearly  the  same;  the  administration  of  justice  similar; 
and  it  was  no  doubt  considered  that  the  laws  and  courts  of  the 
United  States  would  tend  more  and  more  towards  a  more  per- 
fect similarity  in  the  municipal  laws  and  judicial  proceedings  of 

(a)  Suppose  this  latter  clause  omitted.  In  construction,  the  sense 
■would  be  the  same. 


406  CHESHIRE. 


Bryant  v.  Els. 


the  several  States.  Complaints  were  not  apprehended  on  the 
score  of  unjust,  partial  laws  of  the  legislature ;  they  were 
expressly  restrained  hy  the  Constitution  from  makinjx  many 
such  ;  nor  an}^  jealous  apprehension  of  partiality  of  judges  in 
administering  the  municipal  laws.  But  still  it  is  easy  to  im- 
agine that  a  sovereign  State  would  not  incline  to  hold  itself 
bound  by  the  public  acts  and  judicial  proceedings  of  the  other 
States  in  the  Union,  on  matters  which  concern  their  sover- 
eignty. Congress  may  safely  be  trusted  to  legislate  for  the 
Union  ;  they  are  chosen  by  all.  The  courts  of  the  United 
States  may  be  safely  trusted  to  administer  the  laws  of  the 
Union.  But,  as  far  as  our  claim  to  independence  and  sover- 
eignty is  concerned,  there  is  no  ground  for  confidence  in  the 
legislatures  of  the  several  States,  or  in  their  courts. 

My  exposition  of  the  clause  in  the  Constitution,  then,  is,  that 
the  judicial  proceedings  of  every  other  State  in  the  Union  are 
entitled  to  full  faith  and  credit  here  (as  much  as  at  home)  ; 
are  to  be  considered  a  faithful  interpretation  and  application 
of  the  law  ;  and  so  conclusive  to  every  purpose,  except  so  far 
as  the  sovereignty  of  the  States  is  concerned.  We  will  not 
concede,  in  the  credit  we  give  to  their  acts,  the  right  to  try 
and  condemn  our  citizens.  We  still  retain  the  right  of  inter- 
preting for  ourselves  the  law  of  nations  on  the  question  of 
jurisdiction,  (a)  Where  the  law  of  nations  allows  the  Ver- 
mont court,  for  example,  to  try  one  of  our  citizens,  or  to 
entertain  a  suit  against  him  or  his  property,  we  will  be  bound 
by  the  decision.  We  are  willing  to  admit  that  the  court  who 
try  has  jurisdiction,  if  any  court  of  the  State  has,  (they  must 
know  best)  ;  that  the  rule  of  municipal  law  by  which  they  try 
is  just,  and  tlie  decision  of  the  court  correct.  We  will  call 
none  of  these  things  in  question.  But,  if  they  assume  juris- 
diction over  one  of  our  citizens,  where,  by  the  law  of  nations, 

(a)  Jurisdiction,  strictly  taken,  means  the  court  of  the  State  which  has 
jurisdiction  of  a  particular  cause,  or  class  of  causes,  and  this  depends  on 
the  municipal  laws  of  the  State;  and  in  nothing  do  States  differ  more  than 
in  the  constitution  of  their  courts,  and  distribution  of  causes  among  tliem. 
But  here  the  word  "  jurisdiction  "  is  used  in  a  larger  sense,  —  whether  any 
court  of  the  State  has  jurisdiction  or  cognizance  of  the  cause  on  account  of 
the  parties,  or  the  cause  of  action,  by  the  law  of  nations. 


DECEMBER   TERM,  1815.  40T 

Bryant  v.  Ela. 

they  have  none,  we  will  consider  the  proceedings  as  void  ;  we 
will  not  suffer  our  sovereignt}-  to  depend  on  a  decision  of  any- 
State,  an  equal,  but  not  superior,  to  ourselves,  (a) 

To  put  a  case  :  suppose  a  judgment  rendered  against  one  of 
our  citizens  by  a  court  in  Massachusetts,  defendant  not  having 
been  found  in  Massachusetts,  nor  any  property  of  his  within 
that  State,  but  that  the  suit  was,  in  every  other  respect,  prose- 
cuted in  due  and  regular  manner,  the  decision  just,  and  the 
process  served  on  defendant  a  reasonable  time  before  trial. 
No  one  will  suppose  that  his  chance  for  a  just  decision  would 
not  be  as  good  there  as  at  Ijome  ;  and  yet  the  judgment  would 
be  a  nullity,  merely  because  the  Massachusetts  court  had  no 
jurisdiction  over  one  of  our  citizens.  Full  faith  and  credit 
would,  in  that  case,  be  given  to  the  Massachusetts  record,  as  far 
as  it  went.  By  the  record  itself,  it  would  appear  that  the  court 
had  no  jurisdiction.  Full  faith  and  credit  is  given  to  the  record 
of  the  judge  of  probate,  in  the  county  of  Hillsborough,  appoint- 
ing Burnham  administrator  of  Starret,  deceased;  but,  Starret 
being  alive,  the  record  of  his  death  is  a  nullity.^ 

If  the  law  of  nations  is  a  part  of  the  law  of  Vermont,  and 
if  the  account  I  have  given  of  it  is  correct,  and  if  the  Consti- 
tution is  as  I  have  stated  it,  we  shall,  I  think,  meet  with 
little  difficulty  in  deciding  the  questions  before  us. 

It  appears  from  the  record  of  the  judgment  which  we  are 
now  called  on  to  enforce,  that  defendant  was  not  found  in 
Vermont,  so  as  to  give  jurisdiction  to  the  Vermont  court.  (^) 
It  is  admitted  he  was,  at  the  time  (and  the  record  shows  the 

(a)  The  courts  of  the  State  where  our  citizen  is  found  may  be  as 
competent  to  decide  the  question  of  jurisdiction  among  their  own  courts, 
and  the  merits  of  the  cause,  as  our  courts;  there  is  no  room  for  jealousy. 
But,  when  the  question  is  whether  our  citizen  is  amenable  at  all,  it  is  then 
a  question  between  independent  sovereigns,  on  which  to  yield  the  power 
of  judging  is  to  yield  the  sovereignty.  Of  two  equals,  one  cannot  be  the 
judge  of  the  other. 

(b)  If  defendant  had  been  so  found,  I  am  of  opinion  that  the  court  in 
Vermont  would,  in  that  case,  have  had  jurisdiction.  The  doctrine  was  so 
laid  down  in  Wheeler  v.  Peck,  in  this  county,  S.  C.  May  Term,  1808 
(11  Manuscript  Reports,  109). 

^  See  Extract  from  Manuscript  Treatise  on  Probate  Law,  post. 


408  CHESHIRE. 


Brj'ant  v.  Ela. 


same  thing),  an  inhabitant  and  resident  in  this  State.  If, 
then,  the  Vermont  court  had  jurisdiction  of  the  suit,  it  must 
have  been  either,  (1st)  because  the  defendant's  estate  was 
attached,  or,  (2d)  because  defendant  appeared  and  defended 
the  suit. 

1.  In  JVlteehr  v.  Peck,  11  Manuscript  Reports,  109,  both 
parties  lived,  and  had  always  lived,  in  Massachusetts,  and  the 
cause  of  action  accrued  there.  The  suit  was  coniniencod  by 
attachment  of  defendant's  lands  in  this  county.  See  that 
case,  pp.  109-118.  It  has  always  been  the  practice  to  sustain 
suits  so  commenced  in  this  State  ;  and,  for  the  reasons  which 
have  been  stated,  I  am  of  opinion  that  the  jurisdiction  is 
warranted  by  the  law  of  nations.  But,  then,  I  think  the 
judgment  is  no  further  binding  than  the  property  attached. 
It  can  be  used  for  no  other  purpose  than  that  of  making 
a  title  to  the  land  attached,  or,  if  the  property  attached  was 
personal,  for  the  purpose  of  obtaining  satisfaction  to  the 
amount  in  value  of  such  estate.  It  is  a  proceeding  in  rem. 
The  property  gives  the  jurisdiction,  and  marks  and  limits  the 
extent  of  that  jurisdiction.  It  would  border  on  absurdity  to 
say  that,  because  A.  B.,  who  lives  in  Georgia,  happens  to  be 
the  owner  of  property  to  the  value  of  $100  in  this  State, 
this  should  subject  the  owner  to  a  suit  to  any  amount ; 
indeed,  give  the  citizens  of  every  State  in  the  Union  the 
right  of  maintaining  actions  against  him  in  our  courts. 
This  proceeding  by  attachment  does  not  exist  in  England  in 
modern  times.  There,  however,  a  foreigner  may  be  sued,  or 
rather  his  creditor  may  obtain  satisfaction  out  of  his  property, 
by  a  proceeding  called  foreign  attachment.  His  debtor,  or 
person  having  his  goods  in  his  possession,  within  the  jurisdic- 
tion of  the  court,  may  be  summoned,  and  the  debtor's  goods 
condemned  to  the  creditor  suing ;  but  no  judgment  can  be 
obtained    which    binds    beyond    the    value    so    attached,    (a) 

(rt)  The  property  attached  is  condemned.     The  proceeding  is  in  rem. 

Phelps  et  al.  v.  Holker  et  al.,  1  Dall.  2G1.  It  was  rightly  decided  that 
a  judgment  obtained  in  a  foreign  attachment  in  a  sister  State  is  not  con- 
clusive evidence  of  the  debt  in  an  action  between  the  same  parties  in 
another  State.     This  principle  cannot  be  controverted.     It  has  the  entire 


DECEMBER   TERM,  .1815.  409 


Bryant  v.  Ela. 


Our  practice  of  attaching  goods  or  lands  of  a  foreigner  is  an 
extension  of  the  law  of  foreign  attachment.     So  far,  the  law 

approbation  of  all  the  judges  in  Massachusetts.  Bissell  v.  Brigga,  9  Mass. 
464.  It  is  a  little  remarkable,  however,  that  the  case  in  which  this  was 
decided  in  Pennsylvania,  Phelpa  v.  Holker,  was  not  a  foreign  attachment, 
though  it  was  so  represented  to  the  court,  and  so  considered  by  Sewall, 
C.  J.,  in  Massachusetts,  and  Livingston,  J.,  in  New  York.  "The 
sheriff  attached  one  blanket,  shown  to  him  as  the  reputed  property  of  the 
defendants."  I  presume,  if  the  mistake  had  been  discovered,  the  decision 
would  have  been  the  same.  What  is  there  to  distinguish  it  in  principle? 
This  "  reputed  "  blanket,  unfortunate  blanket,  of  Holker,  who  was  neither 
an  inhabitant  nor  resident  in  Massachusetts,  conferred  the  jurisdiction, 
i.  e.  all  the  Massachusetts  courts  had  over  Holker  any  more  than  over  the 
Governor  of  Pennsylvania.  Why  should  the  judgment  extend  beyond 
the  thing  attached,  which  gave  the  jurisdiction?  This  is  the  reasoning 
of  McKean,  C.  J.,  and  has  never  yet  been  contradicted  by  any  judge. 

In  K'dburn  v.  Woodworlh,  5  Johns.  37,  which  was  the  case  of  a  person 
who  had  himself  left  Massachusetts  five  or  six  months,  and  settled  in  the 
State  of  New  York,  but  his  family  remained  behind,  —  they  were  removing 
when  Kilburn's  writ  was  served  by  attachment  of  a  bedstead,  and  sum- 
mons delivered  the  wife,  — it  was  held  that  the  judgment  was  void.  The 
defendant  was  not  within  the  jurisdiction  of  the  Massachusetts  court. 
His  domicile  and  person  were  in  New  I'ork.  The  attachment  of  an  article 
of  his  property  could  not  bind  him.  It  could  only  bind  the  goods  attached 
as  a  proceeding  m  rem ;  and  the  judgment,  which  was,  in  that  case,  by 
default,  cannot  be  the  ground  of  an  action  in  New  York.  To  bind  a 
defendant  personally  by  a  judgment,  when  he  was  never  personally  sum- 
moned, would  be  contrary  to  the  first  principles  of  justice.  The  New  York 
courts  seem  now  to  have  understood  the  case  of  Phelps  v.  Holker  correctly, 
as  it  was.  Here  is  an  authority  —  for  what  indeed  required  none,  being 
clear  on  principle  —  that  proceeding  by  an  attachment  against  an  inhabitant 
or  resident  of  another  State  is  a  proceeding  in  rem,  and  binds  only  to  the 
extent  of  the  thing  attached.  It  cannot  be  considered  as  a  judgment  any- 
where else. 

The  summons  in  the  case  at  bar,  delivered  to  Ela's  wife  at  Lebanon,  is 
a  nullity;  or,  in  other  words,  it  does  not  give  jurisdiction,  or  convert  that 
into  a  personal  suit  which  was  a  proceeding  in  rem.  The  service  of 
process  issuing  out  of  the  State  was  void.  It  gave  him  notice  of  a  pro- 
ceeding in  rem,  and  nothing  more.  It  gave  no  jurisdiction  over  defend- 
ant ;  and  the  jurisdiction  over  the  land  was  acquired  before,  i.  e.  by 
attaching  it.  Clearly,  if  it  had  not  been  for  the  fact  of  Ela  owning  land 
in  Vermont,  no  jurisdiction.  This  will  be  admitted.  On  what  principle 
this?  Not  that  he  had  no  notice;  for  he  had:  but  that  a  citizen  of  New 
Hampshire  cannot  be  sued  in  Vermont  unless  served  with  process  there. 


410  CHESHIRE. 


Bryant  v.  Ela. 


is  reasonable ;  but  it  would  be  unreasonable  to  hold  the 
owner  liable  beyond  the  property  attached,  where  jurisdic- 
tion over  the  person  and  suit  is  acquired  raerel}'^  by  the 
attachment. 

It  is  true,  our  statute  does  not  distinguish  between  the 
cases  where  the  owner  of  the  property  attached  is  a  citizen 
or  foreigner.  But  there  is  a  clear  distinction  in  principle, 
and  clearly  a  judgment  under  the  statute  would  not  be  binding 
on  foreigners.  I  have  no  doubt  that  it  is  competent  now  for 
us  to  consider  the  judgment  now  sued  as  having  the  force 
only  of  a  judgment  in  foreign  attachment.  It  is  void  for  every 
other  purpose,  (a)  It  is  not  like  a  foreign  judgment,  primd 
facie  evidence,  good  till  impeached.  It  is  void,  because  the 
court  had  no  jurisdiction  except  against  the  estate  attached.  (J) 

It  seems  implied  in  Buchanan  v.  Rucker,  1  Camp.  63,  that  if  Rueker 
had  been  served  with  process  (served  with  process  is  a  technical  term  —  by 
an  officer  of  Jamaica,  in  Jamaica,  of  course),  or  had  defended  the  action, 
the  judgment  would  have  been  good.  This  means,  defendant  in  Jamaica 
or  had  appeared  in  a  suit  claiming  jurisdiction  over  him  personally. 
Appearance  admits  the  claim. 

Kibbe  V.  Kibbe,  Kirby,  119,  was  rightly  decided,  and  upon  right  princi- 
ples. Defendant  was  of  Connecticut.  The  service  was  by  attachment  of 
a  handkerchief,  shown  to  the  officer  by  the  plaintiff's  attorney  to  be 
estate  of  defendant,  and  actual  notice  served  on  defendant  in  Connecticut. 
The  Court  held,  that  defendant  was  not  within  the  jurisdiction  of  the 
Massachusetts  court,  and  t.iat  the  full  faith,  &c.,  did  not  touch  this  case. 

(a)  This  way  of  considering  a  judgment  good  for  some  purposes  and 
against  some  persons  only,  is  not  new.  See  Doug.  1,  and  notes,  Appen- 
dix, 6. 

A  judgment  against  an  executor  de  son  tort  cannot  be  l^ied  on  the 
lands  of  the  deceased,  as  a  judgment  against  a  rightful  executor  may. 
Here  the  judgment  is  in  the  same  form  ;  at  least,  the  character  of  the 
party  defendant  is  stated  in  the  same  way.  4  Mass.  654;  see  Graijg  v. 
Starke,  1  Manuscript  Reports,  255.     See  Kirby,  119,  to  same  effect. 

(b)  It  could  not  have  been  the  intention  of  the. legislatures  of  Vermont 
or  New  Hampshire  to  authorize  their  courts  to  entertain  suits  against 
foreigners,  or  citizens  of  other  States,  to  bind  beyond  the  property 
attached.  The  very  assumption  of  such  a  power  would  draw  down  on 
the  State  assuming  it  the  reprobation  of  every  State  in  the  Union.  No 
State  would  allow  the  exercise  of  it  to  any  but  themselves. 

When  we  undertake  to  say  that  the  Vermont  court  had  no  jurisdiction 


DECEMBER   TERM,  1815.  411 


Bryant  v.  Ela. 


2.  The  next  question  is,  whether  the  objection  arising  on 
the  score  of  jurisdiction  is  waived  by  appearance  of  defendant 
in  the  suit  in  Vermont. 

It  is  a  general  rule  that  the  court  must  have  jurisdiction 
at  the  commencement  of  the  suit.  Appearance  cures  defects 
of  service,  errors  and  defects  in  process.  It  is  a  waiver  of 
certain  exceptions.  But  does  it  confer  juri.-,diction  where  the 
court  had  none  before  ?  When  this  was  commenced,  it  was 
a  proceeding  in  rem,  or  in  the  nature  of  such  a  proceeding. 
Does  appearance  turn  this  proceeding  into  a  suit  against  the 
person  ?  This  is  not  the  case  in  suits  in  the  admiralty  and 
exchequer  in  rem  ;  except  where,  perhaps,  the  court  may  call 
the  parties  in  a  transaction  before  them,  in  which  case  they 
may  proceed  in  personam.  In  Jackson  v.  Jackson,  1  Johns. 
424,  the  action  was  debt  on  a  judgment  of  the  Vermont 
court,  in  a  suit  for  alimony  in  a  divorce  cause.  The  de- 
fendant appeared  by  attorney  in  the  suit  (see  Woodworth  in 
reply,  and  Spencer,  J.),  and  made  his  defence  ;  and  yet 
it  was  held  that  the  decree  or  judgment  was  a  nullity.  I 
quote  this  case,  merely  to  show  that  appearance  and  defence 
does  not  confer  jurisdiction,  where  the  court  had  it  not  before. 

over  this  party  defendant,  we  apply  to  the  case  the  principles  of  the  com- 
mon law,  the  general  principles  of  law  and  justice,  the  first  principles  of 
justice.  5  Johns.  41 ;  8  Johns.  88.  These  principles  bind  us  all,  as  well 
in  Vermont  as  here.  As  to  what  belongs  to  a  nation,  independent  State, 
its  rights,  &c.,  each  must  judge  for  itself,  where  the  national  courts  have 
not  exclusive  jurisdiction  by  the  national  compact.  But  each  judges  not 
by  its  own  laws,  still  less  by  the  laws  of  the  other,  but  by  the  law  of 
nations.  It  is  a  national  question,  how  far  the  legislature  or  judicial 
courts  of  one  nation  can  exercise  jurisdiction  over  the  citizens  or  subjects 
of  another  nation  or  State.  These  national  questions  in  our  national 
Constitution  are  confided  to  the  courts  of  the  Union  in  some  cases.  Where 
they  are  not,  each  State  is  a  sovereign,  a  nation.  It  would  be  an  extrava- 
gant construction  of  the  clause  of  full  faith,  &c.,  to  suppose  that  such  a 
surrender  [?]  was  confided  to  any  but  the  United  States,  or  the  State 
whose  subjects  are  affected  by  the  decision.  Each  State  judges  for  itself 
on  national  questions.  A  judgment  of  another,  a  foreign  tribunal,  is,  in 
many  cases,  conclusive;  but  it  is  only  where  by  the  law  of  nations  such 
court  judges  [ '?]  by  the  law  of  nations,  and  the  law  of  nations  has  given 
their  judgments  this  conclusive  quality. 


412  CHESHIRE. 


Bryant  v.  Ela. 


Does  the  act  of  constituting  an  attorney,  and  defending  this 
proceeding  in  Vermont,  in  the  nature  of  a  suit  in  rem,  i.  e. 
defending  defendant's  land  attached,  give  jurisdiction  against 
his  person  ;  does  he  thereby  submit  himself,  as  well  as  his 
land,  to  the  disposal  of  the  court. 

It  may  be  said,  though  appearance  in  a  trustee  suit  does 
not  give  jurisdiction,  yet  here  is  a  suit  against  defendant 
directly,  and  he  appears,  &c.  Answer :  We  regard  this  as 
a  suit  in  rem;  it  may  be  otherwise  in  Vermont;  in  every 
other  State  it  is  a  suit  against  the  land  attached.  Molony  v. 
Gibbons,  2  Camp.  502,  only  shows  that  the  record  was  primd 
facie  evidence  of  jurisdiction,  and  that  the  appearance  was 
regular  ;  just  as  here  we  presume  C.  Marsh  was  attorney  for 
Ela,  and  appeared.  We  cannot  presume  Ela  was  within  the 
jurisdiction  of  the  Vermont  court ;  for  the  record  states  the 
contrary  ;  and  the  parties  agree,  to  make  truth  doubly  true, 
that  the  record  is  true. 

It  may  be  said,  appearance  in  foreign  attachment  in  Eng- 
land gives  jurisdiction,  (a)  and  the  suit  goes  on  against 
the  person.  If  this  were  admitted,  it  would  not  apply. 
Appearance  here  does  not  discharge  the  attachment ;  the 
suit  R-oes  on  as  before.  The  attachment  is  not  here  to 
compel  an  appearance.  The  appearance  does  not  change 
the  nature  of  the  action.  It  may  be  that  it  does  in  Eng- 
land. (5) 

(a)  The  foreign  attachment  is  discharged. 

(b)  Here  it  can  have  no  other  effect  than  it  has  in  an  information 
against  property.     After  appearance,  the  suit  goes  on  as  before. 

I  consider  Lawrence  v.  Smith,  5  Mass.  3G'2,  as  in  point,  to  show  that 
Vermont  court  had  no  jurisdiction  except  against  the  land,  and  that 
appearance  does  not  give  jurisdiction.  The  defendants  were  described  as 
of  the  city  of  New  York.  The  service  was  attachment  of  nominal  prop- 
erty, and  summons  left  with  defendants'  attorney.  Defendants  appeared 
by  attorney,  and  pleaded  to  the  jurisdiction  in  abatement.  Held,  the  plea 
was  bad ;  but  held,  that  the  Court  will  not  proceed  in  the  suit,  as  it  does 
not  appear  that  either  of  the  defendants,  or  any  estate  of  theirs,  is  within 
the  jurisdiction  of  the  Commonwealth.  All  further  proceedings  were 
stayed.  See  Tingley  v.  Baleman  and  Trustee,  10  Mass.  343.  Decision 
right.     Better  reasons  might  have  been  given. 


DECEMBER   TERM,   1815.  413 

Bryant  v.  Ela. 

Have  we  jurisdiction  in  this  cause  in  respect  of  the  subject- 
matter  ? 

On  the  facts  stated  in  this  declaration,  could  plaintiff  have 
maintained  an  action  in  this  State,  when  he  sued  in  Vermont? 
Could  a  court  in  New  Hampshire  entertain  a  suit  to  re- 
cover a  penalty  incurred  by  the  violation  of  a  penal  law  in 
Vermont?  (a) 

It  is  clear,  no  prosecution  could  be  maintained  in  this  State 
for  crimes  (offences)  committed  in  Vermont,  though  by  one 
of  our  citizens,  and  where  another  citizen  of  this  State  should 
be  the  party  more  immediately  injured  thereby.  It  belongs 
to  the  sovereign  authority  of  every  independent  State  to 
punish  all  crimes  committed  within  its  territory.  (6)  They 
are  injuries  done  to  the  State.  The  individual  sufferer  is 
not  regarded.  The  State  is  the  party  injured.  The  penal 
laws  of  one  State  cannot  be  regarded  or  enforced  in  another 
State,  though  another  State  or  its  subjects  may  be  injured 
thereby.  They  must  resort  for  redress  to  the  courts  of  the 
State  in  which  the  offence  was  committed. 

Though  Bryant  was  the  party  grieved,  yet  he  does  not  sue 
as  such.  Any  other  [?]  citizen  of  Vermont  might  (it  is  pre- 
sumed) have  sued.  He  sues  qui  tarn ;  (c)  it  is  a  popular 
action.  That  a  portion  of  the  penalty  belongs  to  him  does 
not  alter  the  case.  An  indictment  would  have  lain,  doubtless, 
for  the  whole,  to  the  use  of  the  State.  This  proportion  is 
given  him  by  the  law  of  Vermont,  to  stimulate  him  to  prose- 
cute an  offender  against  the  penal  law  of  that  State,  (c;?) 

(a)  The  case  would  be  this:  One  citizen  of  New  Hampshire  would 
recover,  in  the  New  Hampshire  courts,  a  penalty  against  another  citizen  of 
New  Hampshire  for  violation  of  a  Vermont  statute;  i.  e.,  for  a  crime  com- 
mitted against  Vermont. 

For  the  present,  I  waive  the  question  whether  any  but  a  citizen  or 
subject  of  the  offended  State  can  be  a  common  informer.  No  doubt,  a 
citizen  of  New  Hampshire  may  be  prosecuted  for  an  offence  against  the 
Vermont  law,  committed  in  Vermont.  I  have  considered  the  question  as 
to  what  shall  give  the  Vermont  court  jurisdiction  over  the  offending  party. 

(b)  Wheeler  v.  Peck,  11  Manuscript  Reports,  109. 

(e)  In  a  popular  action,  it  cannot  be  said  that  any  damage  is  done  to 
the  plaintiff  in  particular.     1  G.  Bacon,  69. 

((/)  The  distinction  is  between  public  wrongs  and  civil  injuries.     The 


414  CHESHIRE. 


Bryant  v.  Ela. 


An  action  might  doubtless  be  maintained  in  this  State  to 
recover  back  the  usury.  Taking  the  $363.84  was  an  injury 
done  to  Bryant,  and,  in  a  civil  point  of  view,  to  him  alone  ; 
no  one  else  could  sue  for  it.  It  is  no  other  way  material  in 
the  action  in  Vermont  than  as  it  serves  to  measure  the  penalty 
to  be  recovered.  The  same  penalty  might,  by  the  Vermont 
statute,  have  been  given  for  taking  one  cent  under  an  usuri- 
ous contract. 

If  a  suit  on  these  facts  could  not  have  been  maintained  in 
this  State,  on  the  ground  that  we  cannot  enforce  against  one 
of  our  citizens,  or  any  other,  a  penal  law  of  Vermont ;  then, 
unless  the  ground  is  changed  by  the  matter  having  passed  into 
judgment  in  Vermont,  and  so  become  a  debt,  we  cannot  inter- 
fere. Supposing  no  such  change,  we  are  called  upon  to  give 
judgment  against  a  citizen  of  this  State  for  an  injury  done  by 
him  to  the  State  of  Vermont. 

For  some  purposes  the  cause  of  action  is  changed.  The 
remedy  may  be  different ;  when  the  matter  has  passed  into 
judgment,  it  has  become  a  debt.  The  defendant  is  precluded 
from  entering  into  the  merits.  It  must  now  be  taken  for 
granted  that  the  offence  was  committed  ;  and  the  judgment 
may  be  enforced  like  every  other  judgment,  (a)  But,  though 
the  form  of  the  action  may  be  changed,  the  purpose,  intent, 
sole  object  of  this  suit,  is  to  punish  Ela  for  violating  a  Ver- 
mont law.  (6)  Suppose  a  fine  inflicted  for  a  crime  committed 
in  Vermont.  Debt  would  lie  in  Vermont.  Would  it  in  this 
State  ?     Is  there  any    difference   in    this   respect  between  a 

latter  follow  the  person.  The  former  are  local ;  none  but  the  courts  of 
the  State  injured  can  give  redress.  11  Manuscript  Reports,  lUD,  111, 
122,  143,  145. 

A  statute  confiscating  estates  for  the  part  taken  in  the  American  Rev- 
olution is  a  penal  law.  Ogden  v.  Folliot,  in  error,  2  Law  Mag.  120;  3  T.  R. 
726. 

See  4  Dall.  419;  11  Manuscript  Reports  above,  and  p.  145. 

(a)  Qucere.  May  not  Treasurer  of  Vermont  interfere?  He  has  no 
security  for  his  moiety.  Could  not  Bryant  compound?  Could  a  New 
Hampshire  court  prevent,  as  Vermont  court  might  have  done,  and,  if  the 
action  there,  might  still  perhaps  do? 

(6)  Or,  perliaps,  to  make  the  punishment  declared  in  Vermont  effectual, 
—  to  assist  their  courts  in  the  work  of  punishment. 


DECEMBER   TERM,  1815.  415 

Bryant  v.  Ela. 

pecuniary  mulct  and  stripes?     May  notour  court  inflict  the 
one  as  well  as  the  other  ? 

In  this  view  of  the  case,  the  objection  is  to  our  jurisdiction, 
not  the  jurisdiction  of  the  Vermont  court. 

Can  defendant  take  advantage  of  this  defect  of  jurisdiction, 
if  well  founded,  under  this  plea  ?  (a) 

He  could,  of  a  want  of  jurisdiction  in  the  Vermont  court. 
But  if  they  had  jurisdiction,  and  we  none,  must  not  this  be 
pleaded  ?  Does  he  not  admit  our  jurisdiction  by  this  plea  ?  (6) 
But  suppose  an  indictment  here  for  offence  against  Vermont 
law.  Would  not  the  court  be  bound,  under  the  general  issue, 
to  dismiss  the  suit,  when  they  discover  the  cause  of  complaint  ? 
Suppose  it  stated  in  indictment  —  dismiss  ex  officio  —  quash. 
If  stated  committed  in  New  Hampshire,  and  proof  in  Ver- 
mont, direct  acquittal  by  jury.  Or,  if  after-pleadings  show 
the  fact,  would  not  the  court  be  bound  to  give  the  proper 
judgment,  —  that  defendant  go  quit  ? 

Quaere,  whether  Constitution  United  States  affects  this  ques- 
tion.    11  Manuscript  Reports,  117. 

Recapitulation.^ 

1.  The  Vermont  court  had  no  jurisdiction  over  the  defend- 
ant. No  suit  could  be  commenced  against  him  in  Vermont, 
on  personal  notice  served  in  New  Hampshire.  He  must  be 
inhabitant  or  resident  in  Vermont,  or  the  process  served  on 
him  there. 

Jurisdiction  is  acquired  by  attachment  of  land.     But,  where 

(a)  If  oyer  of  a  record  were  demandable,  defendant  might  have  craved 
oyer,  and  demurred,  as  the  objection  appears  on  the  face  of  the  record. 

(6)  It  is  held,  that,  if  no  court  of  the  State  has  jurisdiction,  defendant 
may  avail  himself  (in  a  transitory  action)  of  this  defence  under  a  plea 
which  goes  to  the  action.  Rea  v.  Hayden,  3  Mass.  24.  Semble,  the  rule 
is  general,  where  no  court  of  the  State  has  jurisdiction,  then,  by  the  law  of 
the  land,  the  action  cannot  be  maintained,  and  this  may  be  shown  under 
nil  debet. 

^  The  "  Recapitulation"  and  "  Result  "  are  on  separate  sheets.  Prob- 
ably only  one  of  these  was  used  in  delivering  the  opinion.  So  much  of 
each  is  printed  as  purports  to  state  points  decided. 


416  CHESHIRE. 


Bryant  v.  Ela. 


the  court  have  otherwise  no  jurisdiction,  and  have  it  only  on 
account  of  the  land,  the  jurisdiction  is  only  to  proceed  against 
the  land.  Like  debt  for.  att.  [judgment  in  foreign  attach- 
ment?], this  is  to  be  regarded  here  by  the  law  of  nations, 
which  is  the  law  which,  and  which  only,  applies,  as  a  judg- 
ment against  the  land. 

The  appearance  in  Vermont  does  not  change  the  nature  of 
the  suit.   .   .  .  This  was  not  a  personal  suit,  but  in  rem. 

2.  If  Vermont  court  had  jurisdiction  over  the  defendant, 
and  this  is  a  good  judgment  against  him  in  Vermont,  yet,  in 
respect  to  the  subject-matter,  it  cannot  be  enforced  here. 

It  is  to  punish  defendant  for  an  offence  against  the  State 
of  Vermont. 

Result. 

1.  Vermont  court  had  no  jurisdiction  over  the  defendant 
to  render  a  judgment  for  any  other  purpose  than  as  affects 
the  attachment.  The  appearance  does  not  confer  any  juris- 
diction beyond  what  the  nature  of  the  suit  allows.  If  the  suit 
had  been  of  a  nature  to  confer  complete  jurisdiction,  the 
appearance  might  have  cured  defects  in  process,  &c. ;  but  the 
suit,  in  its  nature,  was  in  rem^  and  appearance  does  not 
change  its  nature.  Appearance  may  [confer]  jurisdiction  in 
a  direct  suit  against  him,  but  this  [is],  in  effect,  against  land. 

2.  This  court  has  no  jurisdiction  of  the  suit,  on  account  of 

the  subject-matter  or  cause,  which  is  to  enforce  a  Vermont 

penal  statute.     When  this  court  is  called  upon  to  carry  into 

effect  a  judgment  where  they  would  have  had  no  jurisdiction 

in  the  action  for  the  original  cause,  they  may  look  into  the 

grounds  of  that  judgment. 

Judgment  on  the  verdict} 

1  "  And  if  the  defendant,  after  the  service  of  the  process  of  foreign 
attachment,  should  either  in  person  have  gone  into  New  Hampshire,  or 
constituted  an  attorney  to  defend  tlie  suit,  so  as  to  protect  his  goods, 
effects,  or  credits  from  the  effect  of  the  attachment,  he  would  not  thereby 
have  given  the  court  jurisdiction  of  his  person  ;  since  this  jurisdiction 
must  result  from  the  service  of  the  foreign  attachment.  It  would  be  un- 
reasonable to  oblige  any  man  living  in  one  State,  and  having  effects  in 
another  State,  to  make  himself  amenable  to  the  courts  of  the  last  State, 


DECEMBER   TERM,  1815.  417 

Bryant  v.  Ela. 

that  he  might  defend  his  property  there  attached."  Parsons,  C.  J.,  in 
Bii^sell  V.  Briggs,  1813,  9  Mass.  462. 

"  Chief  Justice  Parsons,  in  the  case  of  Buisell  v.  Briggs,  supposes  that 
where  proceedings  were  instituted  by  process  of  attachnaent  in  one  State, 
against  the  property  of  a  citizen  of  another,  he  might  appear  in  person,  or 
by  attorney,  to  defend  his  property,  without  thereby  giving  the  court  juris- 
diction of  his  person.  The  court  would  not,  in  such  a  case,  I  concede, 
have  jurisdiction  over  his  person  for  any  other  but  the  direct  objects  of  the 
proceedings ;  and,  as  far  as  those  were  concerned,  he  would  be  subjected 
to  the  authority  of  the  court.  If  a  citizen  of  one  State  should  go  into 
another,  to  claim  property  seized  on  attachment,  and  subject  the  attaching 
creditors  to  costs  and  expenses  which,  in  the  due  course  of  proceedings, 
should  be  adjudged  to  them  by  a  court  of  competent  authority,  will  it  be 
pretended  that  he  could  resist  the  payment  of  these  costs  and  expenses,  on 
the  ground  that  he  was  not  subject  to  the  jurisdiction  of  the  court?  For 
all  the  fair  and  direct  objects  of  the  suit,  he  was  within  its  jurisdiction. 
So,  if  the  proceedings  were  not  in  rem,  but  the  property  of  the  defendant  was 
attached,  to  compel  him  to  appear  and  answer  to  proceedings  in  personam, 
and  he  did,  in  fact,  appear  and  litigate  the  cause  with  the  plaintiff,  he  could 
not  be  heard  to  question  the  jurisdiction  of  that  court  over  his  person.  I 
do  not  think  Chief  Justice  Parsons  intended  to  say  more  than  this  :  that, 
when  a  court  had  the  jurisdiction  of  the  person  of  a  defendant  for  one 
purpose,  it  could  not  legally  bind  him  by  a  judgment  or  sentence  in  a  dis- 
tinct and  different  matter."  Marcy,  J.,  in  Starbuck  v.  Murray,  1830, 
5  Wend.  148,  159,  160. 

"And  he"  (Parsons,  C.  J.)  "further  held,  that  if  the  defendant 
had  appeared  to  the  attachment,  it  could  not  have  given  the  court  of 
New  Hampshire  jurisdiction  of  his  person." 

"  On  this  last  point  Judge  Parsons  was  probably  mistaken.  The  at- 
tachment is  a  mode  by  which  to  compel  the  appearance  of  the  defendant, 
and  if  he  do  appear,  and  contests  the  validity  of  the  claim,  there  seems  to 
be  no  reason  why  he  should  not  be  bound,  in  personam,  by  the  judgment." 
Lincoln  v.  Tower,  1841,  2  McLean,  473,  482. 

"  Chief  Justice  Parsons,  in  Bissell  v.  Briggs,  goes  so  far  as  to  intimate 
that,  even  should  the  defendant  appear  in  the  attachment  suit,  this  does 
not  give  jurisdiction  to  the  court  to  render  against  him  a  judgment  in  per- 
sonam, which  would  bind  extra-territorially  ;  but  this  cannot  now  be  main- 
tained."    Whart.  Confl.  Laws,  §  830,  n.  y. 

In  Noyes  v.  Butler,  1849,  6  Barb.  613,  620,  Paige,  P.  J.,  understands 
Parsons,  C.  J.,  as  asserting  that  a  general  appearance  by  the  non-resident 
defendant  "  should  be  deemed  an  appearance  merely  to  protect  the  prop- 
erty attached;  and  that  he  did  not,  by  such  appearance,  give  the  court 
...  in  New  Hampshire  jurisdiction  of  his  person." 

There  may,  of  course,  be  essential  differences,  both  in  the  form  of 
entering  appearances,  and  in  the  nature  of  the  pleas  filed,  on  the  part 

27 


418  CHESHIRE. 


Bryant  v.  Ela. 


of  non-resident  defendants,  as  indicated  in  the  following  hypothetical 
cases : — 

1.  A  non-resident  defendant,  whose  property  has  been  attached  without 
personal  service  on  him,  appears  and  pleads  to  the  merits,  without  object- 
ing to  the  jurisdiction. 

A  judgment  in  personam  rendered  against  him  under  this  state  of  facts 
has  repeatedly  been  held  enforceable  in  other  jurisdictions.  See,  for  in- 
stance. Mayhem  v.  Thatcher,  1821,  6  Wheat.  129  ;  Shutnway  v.  Slillman, 
1831,  6  Wend.  447  ;  Blyler  v.  Kline,  1870,  G4  Pa.  St.  130;  Perley,  J., 
in  Downer  v.  Shaw,  1851,  22  N.  H.  277,  281. 

In  Noyes  v.  Butler,  1849,  6  Barb.  613,  620,  Paige,  P.  J.,  inclined,  as 
matter  of  principle,  to  the  opposite  view,  but  felt  bound  by  the  authori- 
ties. See  also  Platt,  J.,  in  Pawling  v.  Bird's  Ex^rs,  1816,  13  Johns. 
192,  207. 

2.  The  defendant  appears  specially  for  the  sole  purpose  of  objecting  to 
the  jurisdiction;  and  appears  no  further  after  that  question  is  decided 
against  him. 

According  to  Wright  v.  Boynton,  18.58,  37  N.  H.  9,  such  a  restricted 
appearance  will  not  give  to  the  court  jurisdiction  of  the  person,  if  they 
had  none  before.  (But  the  objection  to  the  jurisdiction  is  held  to  be 
"waived,  if  the  defendant,  at  the  same  time,  submits  to  the  court  any 
other  objection.  Merrill  v.  Houghton,  1871,  51  N.  H.  61,  and  cases  there 
cited.) 

In  Bigelow  on  Estoppel,  2d  ed.,  p.  203,  it  is  said  :  "  It  is  probable  that 
if  there  had  been  issue  raised  between  the  parties  upon  this  point  "  (juris- 
diction), "  and  this  issue  had  been  decided  in  favor  of  the  jurisdiction,  the 
decision  in  this  particular  would  bar  a  re-trial  of  the  question.  And  this, 
too,  though  it  should  be  conceded  that  the  defendant's  appearance,  being 
merely  entered  to  test  the  question  of  jurisdiction,  had  not,  per  se,  giveji 
the  court  jurisdiction  to  try  the  merits  of  the  cause."  But  see  the  im- 
perfectly reported  case  of  McNah  v.  Bennett,  1872,  66  III.  157;  and  Toledo, 
W.,  and  W.  Railway  Co.  v.  Reynolds,  1874,  72  111.  487. 

In  Bryant  v.  Ela,  it  might,  perhaps,  have  been  argued  that  the  defend- 
ant's first  plea  impliedly  admitted  the  jurisdiction  of  the  court,  in  case  the 
property  attached  was  proved  to  be  his ;  and  that  therefore  the  finding 
against  him  on  the  issue  of  ownership  estopped  him  from  subsequently 
denying  the  jurisdiction. 

3.  The  defendant  appears  and  objects  to  the  jurisdiction.  This  objec- 
tion being  overruled,  he  then  pleads  to  the  merits.  This  was  the  case  in 
Bryant  v.  Ela. 

Quaere,  whether  the  defendant  would  have  been  in  a  better  position  to 
deny  the  validity  of  the  judgment,  if  his  plea  to  the  merits  Jiad  been  filed 
under  protest,  with  an  express  reservation  of  all  previous  objections.  See 
Coleman's  Appeal,  1874,  75  Pa.  St.  441. 

4.  The  defendant  asks  leave  to  appear  specially  for  the  sole  purpose  of 


DECEMBER   TERM,  1815.  419 

Bryant  v.  Ela. 

protecting  his  property;  i.  e.,  to  prevent  the  rendition  of  a  judgment 
binding  his  attached  property. 

If  this  leave  is  granted,  would  such  a  limited  appearance  give  jurisdic- 
tion of  the  defendant's  person?  And,  if  a  judgment  for  the  plaintiff 
would  not  be  binding  on  the  defendant  personally,  how  far  would  a  judg- 
ment for  the  defendant  be  binding  on  the  plaintiff  by  way  of  estoppel? 
Suppose  an  action  of  contract  is  brought  to  recover  an  alleged  claim  of 
$1,000.  Property  attached,  valued  at  $100.  Defendant  has  leave  to 
appear  specially  to  prevent  judgment  against  the  property  attached.  He 
sets  up  a  defence  which  goes  to  the  merits  of  the  entire  claim.  Issue  is  joined, 
and  found  for  the  defendant.  What  judgment  shall  be  entered?  Will 
the  judgment  estop  the  plaintiff  as  to  the  whole  ten-tenths  of  his  demand, 
if  the  defendant  ran  the  risk  of  losing  (by  an  adverse  decision)  only  one- 
tenth  of  the  amount?  Perhaps  some  provision  as  to  the  form  and  effect 
of  the  judgment  should  be  inserted  in  the  order  of  court  granting  leave  to 
enter  the  special  appearance. 

If  leave  to  enter  a  limited  appearance  is  refused,  and  the  defendant 
then,  under  protest,  pleads  to  the  merits,  is  a  subsequent  judgment  in 
personam  binding  on  him  in  another  State?  That  a  voluntary  appearance 
confers  jurisdiction  of  the  person  is  elementary.  But  the  defendant  would 
argue  that  his  appearance  was  not  "voluntary,"  pleading  to  the  merits 
being  the  only  method  left  to  defend  his  property  attached.  The  plaintiff, 
on  the  other  hand,  might  argue  that  the  defendant  ought  not  to  be  per- 
mitted to  take  his  chance  of  obtaining  a  judgment  which  would  be  con- 
clusive against  the  plaintiff  as  to  the  entire  cause  of  controversy,  without 
subjecting  himself  to  the  rendition  of  an  adverse  judgment,  equally  far- 
reaching  in  its  results  as  against  himself. 

As  to  the  second  point  decided  in  Bryant  v.  Ela,  that  case  is  in  direct 
conflict  with  Healy  v.  Root,  1831,  11  Pick.  389.  In  Spencer  v.  Brockway, 
1824,  1  Ohio  (Hammond),  259,  a  suit  was  maintained  in  Ohio  upon  a 
judgment  rendered  in  Connecticut,  in  favor  of  the  State  treasurer,  "  on  a 
bond  of  recognizance."  \n  State  of  Indiana  v.  Hehner,  1866,  21  Iowa,  370, 
a  suit  was  maintained  in  Iowa  upon  a  judgment  rendered  in  Indiana  under 
the  Indiana  bastardy  statute. 


420  CHESHIRE. 


Lewis  r.  Foster. 


Seth    Lewis,    Defendant  in   Review,    v.   Henry    Foster, 
Plaintiff  in  Review. 

A.brouglit  an  action  of  debt  against  B.,for  a  penalty  given  by  statute,  and  recov- 
ered judgment.     After  judgment,  the  statute  was  repealed.     B.  then  reviewed. 

Smith,  C.  J.,  thought  that  tlie  repeal  did  not  entitle  B.  to  judgment  on  review. 
But  the  contrary  was  afterwards  held  in  the  Superior  Court,  to  which  the  cause 
was  transferred. 

This  was  an  action  of  debt,  for  a  penalty,  founded  on  §  3 
of  the  statute  of  Dec.  16,  1796,  entitled  "An  Act  regulating 
Fees,"  which  provides  that  any  one  taking  more  than  the  legal 
fee  "  shall  forfeit  and  pay,  to  the  person  or  persons  suing  for 
the  same,  the  sum  of  $30  for  ever}'  such  offence ;  to  be  re- 
covered by  action  of  debt,  in  the  Court  of  Common  Pleas ; 
besides  being  liable  to  an  action  for  damages,  by  and  for  the 
party  injured,  to  recover  back  the  sum  or  sums  so  unlawfully 
taken."  The  suit  was  commenced  on  March  30,  1812,  and 
(at  May  Term,  1813)  previous  to  June  10,  1813,  had  been 
tried  on  the  general  issue,  and  a  verdict  returned  for  the 
plaintiff,  and  judgment  rendered  accordingly.  The  defendant 
reviewed  the  cause,  and  it  was  again  tried  at  October  Term, 
1815.  At  this  trial  a  verdict  was  taken  for  the  original  plaintiff, 
subject  to  the  opinion  of  the  Court  upon  the  validity  of  the 
objections  raised  by  the  defendant;  one  of  which  was,  "that 
the  section  of  the  act  of  Dec.  16,  1796,  imposing  the  penalty, 
was  repealed,  without  any  saving  clause,  by  §  3  of  an  act 
passed  June  19,  1813."  i 

The  case  appears  to  have  been  argued  at  December  Term, 
1815,  and  to  have  been  considered  by  the  Court. 

Smith,  C.  J.,  committed  some  views  to  writing,  from  which 
the  following  is  an  extract :  — 

The  second  section  of  the  act  regulating  fees  subjects  the 

^  Statement  of  case  compiled  from  Judge  Smith's  papers  and  the  report 
in  1  N.  11.  Gl. 


DECEMBER   TERM,   1815.  421 

Lewis  V.  Foster. 

party  (say,  deputy  sheriff)  taking  more  than  lawful  fees  (the 
fees  prescribed  by  statute)  to  the  penalty  or  forfeiture  of  $30 
for  every  such  offence,  to  be  recovered  by  any  person  who  will 
sue  for  the  same  by  action  of  debt  in  the  Court  of  Common 
Pleas. 

This  clearly  amounts  to  a  prohibition  from  taking  be3'ond 
the  legal  fees.     It  makes  such  taking  unlawful. 

But  it  is  equally  clear  that  the  repeal  of  the  section  in  ques- 
tion, though  it  did  not  make  the  act  lawful,  which  was  unlawful 
when  committed  (1  Comyns  on  Contracts,  39 ;  1  H.  Bl. 
65),  yet  had  such  an  operation  that  the  offender  could  not  be 
prosecuted  and  punished  by  indictment  or  at  the  suit  of  the 
State.  Judgment  must  be  pronounced  before  the  repeal.  It 
is  fairly  to  be  presumed,  that  if  the  State  repeal  the  law,  with- 
out any  saving,  all  penalties  and  forfeitures  accruing  to  the 
State  were  remitted.  Commonwealth  of  Pennsylvmiia  v.  Duane, 
1  Binn.  601,  is  in  point.  So  it  is  laid  down  in  Hawk.  P.  C. 
(B.  I.  c.  41,  §  6,  p.  169)  that  "if  one  commit  an  offence  which 
is  made  felony  by  statute,  and  then  the  statute  is  repealed,  he 
cannot  be  punished  as  a  felon  in  respect  of  that  statute."  So, 
in  United  States  v.  Passmore,  4  Dall.  372,  it  was  held,  that  the 
repeal  of  the  bankrupt  law  was  a  bar  to  any  prosecution  for 
perjury  previously  committed  under  it. 

It  may  be  a  question  whether  the  repeal  of  the  law  under 
consideration  at  all  affects  plaintiff's  right  to  prosecute  to  final 
judgment  an  action  instituted  before  the  repeal.  This  doubt 
is  founded  on  the  distinction  between  prosecutions  on  penal 
statutes  at  the  suit  of  the  public  and  a  private  person.  It  is 
very  clear  that  the  attorney-general  could  not  enter  a  nolle 
prosequi  in  this  suit.  Have  the  legislature  the  power  to  do  so, 
to  deprive  the  plaintiff"  of  the  costs  accrued  while  innocently 
pursuing  a  lawful  action,  and,  still  further,  to  subject  him  to 
the  payment  of  costs  to  an  offender?  If  the  act  had  been 
temporary,  perhaps  plaintiff  could  not  complain  ;  but  here  it 
was  without  limitation.  As  it  respects  the  plaintiff,  the  [repeal- 
ing] act  is  retrospective.  It  introduces  a  new  rule  for  the 
decision  of  his  cause ;  one  which  takes  from  him  tlie  right  to 
a  sum  of  money,  —  a  right  which  was  vested  in  him.     But  the 


422  CHESHIRE. 


Lewis  V.  Foster. 


legislature  have  not  said  that  the  repeal  shall  bar  the  plaintiff's 
action.  The  question  is,  whether  a  simple  repeal  of  the  statute 
on  which  his  action  is  founded  has  this  effect  and  operation. 

It  bars  all  indictments  and  prosecutions  at  the  suit  of  the 
State.  Its  being  retrospective  works  no  injury  to  any  citizen  ; 
and  the  legislature  are  the  constitutional  judges  of  what  regards 
the  welfare  of  the  State. 

A  statute  may  have  one  construction  as  it  respects  the  pub- 
lic, and  another  as  it  respects  individuals.  If  the  legislature 
could  not,  by  the  Constitution,  pass  a  law  devesting  the  right 
acquired  by  the  plaintiff  to  the  penalty  by  commencing  his 
suit,  then  the  act  cannot  be  set  up  as  a  bar.  They  ma}'^  repeal 
all  laws ;  but  they  must  exercise  this  power  in  such  a  manner 
as  not  to  violate  the  Constitution  ;  and  the  courts  are  bound  to 
see  that  a  repeal  in  any  particular  case  is  not  attended  with 
this  effect. 

Before  this  statute,  the  taking  of  13.90  [fees]  would  not 
authorize  this  action.  The  repeal  did  not  make  the  act  com- 
mitted by  defendant  lawful.  An  act,  unlawful  at  the  time, 
does  not  become  lawful  by  repeal  of  the  statute  which  made  it 
unlawful  at  the  time.^  The  English  statute  which  prohibited 
insurance  of  lottery-tickets  was  repealed.  While  in  force,  an 
insurance  was  made  and  the  contract  of  insurance  executed, 
i.  e.  the  premium  and  losses  paid.  It  was  held  that  the  repeal 
of  the  statute  did  not  make  the  insurance  lawful.  It  was  still 
unlawful  under  the  repealed  statute,  though  lawful  at  common 
law ;  but  could  not  be  enforced,  i.  e.  the  penalty  could  not  be 
enforced.  If  the  contract  of  insurance  had  not  been  executed, 
the  repealed  law  could  not  now  be  set  up  against  it.  1  H. 
Bl.  Qb. 

Every  thing  done  under  the  statute,  as  it  was  lawfully  done, 
remains  always  so. 

Now  the  suit  was  lawfully  commenced.  The  right  to  the 
penalty  attached.  The  legislature  cannot  declare  that  to  be 
unlawful  which  was  lawful,  and  cannot  take  away  a  right 
lawfully  acquired.  The  rights  of  Lewis  are  saved,  because 
the  legislature  could  not  take  them  away.     We  must  so  con- 

1  RiCHAKDSON,  C.  J.,  in  Rohy  v.  West,  1828,  4  N.  H.  285,  287. 


DECEMBER   TERM,  1815.  423 

Lewis  V.  Foster. 

strue  the  repealing  act.  We  may  give  it  effect  as  far  as  the 
State  is  concerned,  and  all  persons  who  have  acquired  no  rights 
under  it.  Further  we  cannot  go  ;  and  further  the  legislature 
cannot  go. 

Couch^  qui  tarn,  v.  Jeffries,  4  Burr.  2460,  was  an  action  for 
the  penalty  of  not  paying  the  stamp  duty  upon  an  indenture 
of  apprenticeship.  After  verdict  the  parliament  passed  an 
act,  allowing  the  persons  who  might  have  incurred  the  penalty 
to  be  relieved  on  payment  of  the  duties.  It  so  far  repealed 
the  former,  statute,  that,  on  compliance  with  the  conditions  of 
the  new,  the  party  offending  was  discharged  from  the  penalty 
prescribed  in  the  former  act.  The  words  were,  that  the 
person  paying  the  duty,  &c.,  shall  be  acquitted  and  discharged 
of  and  from  the  said  penalties ;  and  there  was  no  saving  for 
actions  already  commenced.  It  was  held  that  the  legislature 
intended  only  future  actions ;  otherwise  it  would  be  punish- 
ing the  innocent  instead  of  the  guilty.  It  could  not  be  the 
true  construction  of  the  act  to  take  away  a  vested  right  and 
punish  the  innocent  pursuer  of  it  with  costs.  It  meant  only 
actions  to  be  commenced  after  the  duty  paid.  As  it  would 
have  been  unjust  to  construe  the  act  of  parliament  so  as  to 
embrace  actions  pending,  it  was  construed  not  to  extend  to 
actions  brought  prior  to  the  making  of  it.  So,  here,  as  it  would 
be  unjust  and  unconstitutional  to  construe  the  repeal  to  affect 
actions  pending,  it  shall  be  held  not  to  embrace  them. 

The  English  Statute  of  Frauds  took  effect  June  24,  16VT. 
A  suit  was  brought,  afterwards,  on  a  parol  promise  made  before 
that  time.  The  words  of  the  statute  were,  that  no  action 
should  be  brought,  &c.  It  was  held  that  the  statute  only 
applied  to  actions  on  parol  promises  made  after  the  statute, 
because  a  contrary  construction  would  make  the  act  repugnant 
to  common  justice.  7  Johns.  503,  504.  Here  the  statute 
repealed  the  common  law  ;  but  it  was  held  that  it  should  oper- 
ate prospectively  only,  as  it  would  be  unjust  to  give  it  a  retro- 
spective operation. 

Dash  V.  Van  Kleeck,  Sheriff  of  Albany,  7  Johns.  477.  The 
New  York  statute  provided  that  a  debtor  might  have  the  lib- 
erties on  giving  a  bond  to  the  sheriff;  and  the  court  deter- 


424  CHESHIRE. 


Lewis  V.  Foster. 


mined  that  where  the  debtor  escaped  and  returned,  or  was 
retaken  before  action  brought,  that  this,  though  a  good  defence 
to  an  action  for  the  escape  at  common  hiw,  was  no  defence 
under  the  statute.  On  this  construction  of  the  statute,  this 
action  was  brought  against  the  sheriff  for  an  escape.  After 
issue  joined,  and  before  the  trial,  the  legislature  passed  an  act 
concerning  escapes,  which  provided  that  nothing  in  the  former 
acts  shall  be  so  construed  as  to  prevent  any  sheriff,  in  case  of 
escapes,  from  availing  himself,  as  at  common  law,  of  a  defence 
arising  from  a  recaption  on  fresh  pursuit,  &c. 

It  was  held  that  this,  whether  considered  as  a  repeal  of  the 
old  statute,  and  as  introducing  a  new  rule  for  the  government 
of  the  past  case,  or  as  declaring  the  interpretation  of  the 
former  statutes,  for  the  direction  of  the  courts,  was  no  bar  to 
the  action  commenced  before  the  act  was  passed.  It  should 
be  construed  to  extend  only  to  actions  commenced  after  the 
passing  of  the  act ;  because  an  act  of  the  legislature  is  not  to 
be  construed  to  operate  retrospectively,  so  as  to  take  away  a 
vested  right.  It  was  held  to  be  a  principle  of  universal  juris- 
prudence, that  laws,  civil  or  criminal,  should  be  prospective, 
and  should  not  have  a  retroactive  effect.  Our  constitution 
was  cited  on  the  subject  of  retrospective  laws;  viz.,  that  they 
are  highly  injurious,  oppressive,  and  unjust,  and  should  not  be 
made  either  for  the  decision  of  civil  causes  or  the  punishment 
of  offences.  And  it  was  not  doubted  that  this  article  inhibited 
the  legislature  from  passing  any  law  which  should  deprive  a 
party  of  a  vested  right,  which  should  punish  an  innocent  man 
pursuing  his  right  with  costs  in  favor  of  an  offender.^ 

But  it  seems  to  me  that  the  present  case  stands  on  grounds 
still  stronger  for  the  plaintiff.  This  is  a  process  brought  by 
Foster  to  reverse  a  judgment  rendered  against  him  in  this 

1  The  well-settled  judicial  doctrine,  that,  the  law-maker  will  not  be 
presumed  to  have  intended  that  a  statute  should  have  a  retrospective 
operation,  has  been  adopted  by  the  legislature  as  a  rule  for  the  interpre- 
tation of  future  repealing  acts.  Gen.  Laws,  c.  1,  §§  33,  31;  Perley,  C.  J., 
in  Dickinsun  v.  Locell,  1858,  3(3  N.  H.  361,  36ti;  Pkrley,  C.  J.,  in  Colony 
V.  Dublin,  1855,  32  N.  H.  432,  434,  435;  Lakemanv.  Moore,  18.55,  32  N.  H. 
410;  Farr  v.  Chandler,  1872,  51  N.  H.  545. 


DECEMBER   TERM,   1815.  425 

Lewis  V.  Foster. 

court,  May  Term,  1813.  This  reversal  may  be  either  on 
account  of  want  of  merits  (by  the  jury),  or  that  it  cannot  be 
sustained  in  point  of  law,  —  that  there  was,  or  is,  no  law  to  war- 
rant it.  Our  writ  of  review  is  a  writ  of  error,  and  more.  It 
is  now  to  be  used  as  a  writ  of  error,  the  jury  having  found 
for  the  plaintiff  on  the  merits.  The  plaintiff,  Lewis,  asks  for 
no  judgment  in  his  favor.  He  has  a  judgment,  and  lias  ob- 
tained satisfaction.  The  question  is,  whether  that  judgment 
be  erroneous  or  not.  If  erroneous,  this  court  are  now  bound 
to  reverse  it,  and  give  such  judgment  as  the  court  in  1813 
ought  to  have  given,  and  to  restore  Foster  to  what  he  has  lost 
by  reason  of  that  erroneous  judgment,  and  to  give  him  his 
costs  from  the  beginning.^ 

One  can  hardly  maintain  the  requisite  gravity,  in  the  dis- 
cussion of  this  question.  We  are  called  upon  to  say  whether 
the  court,  at  May  Term,  1813,  erred  in  giving  judgment  on  a 
law  which  was  then  in  full  force,  but  which  was  repealed  in 
June  following.  In  reversing  that  judgment,  we  must,  more- 
over, say  that,  when  a  statute  is  repealed,  all  acts  done  under 
it  whilst  it  was  in  force  are  not  good,  that  is,  are  void  or 
voidable.  This  is  said  to  be  the  case  when  a  statute  is  de- 
clared to  be  null.  It  is  the  case  where  the  statute  is  null, 
that  is,  unconstitutional.  Upon  this  doctrine,  I  think,  nothing 
would  be  easier  than  for  the  legislature  to  ruin  every  indi- 
vidual in  the  State. 

But  so  far  is  this  from  being  the  law,  that  the  contrary  is 
the  law.  All  acts  done  under  a  statute  whilst  it  was  in  force 
are  good.  And  will  it  be  said  that  acts  in  pais  are  good,  but 
that  the  solemn  judgments  given  in  courts  of  record  are  null 
and  void  ?  A  contract  which  is  declared  by  a  particular 
statute  to  be  illegal  is  not  made  good  by  a  repeal  of  that 
statute  after  the  contract  has  been  executed ;  what  is  done 
and  completed  under  the  statute  always  remains  the  same. 
So  what  was  legally  done  and  completed  under  a  statute 
always  remains  done,  completed,  and  legal.  The  law  may 
be  changed  for  the  future,  but  a  new  rule  for  the  past  cannot 

1  Since  the  statute  of  July  2,  1838,  no  costs  are  recoverable  on  re- 
view, except  those  accruing  in  the  action  of  review.  See  Gen.  Stat.  c.  215, 
§13. 


426  CHESHIRE. 


Lewis  V.  Foster. 


be  made.  It  is  an  ahsuidity  in  terms.  A  new  rule  of  con- 
duct prescribed  for  past  ages!  This  would  be  inverting  the 
order  of  legislation. 

To  say  that  the  repeal  in  question  shall  have  the  operation 
contended  for  is  in  effect  saying  that  the  legislature  can  annul 
a  judgment.  This  is  as  effectually  done  by  removing  the 
foundation  on  which  it  stands  as  by  leversing  it  in  so  many 
words.  7  Johns.  490,  492.  Spencer,  J.,  denied  the  legis- 
lature this  power.  A  law  can  be  repealed  by  the  lawgiver, 
but  the  rights  which  have  been  acquired  under  it  while  it 
was  in  force  do  not  thereby  cease.  It  would  be  an  act  of 
absolute  injustice  to  abolish  with  a  law  all  the  effects  which 
it  had  produced.     Puffendorf,  B.  I.  c.  6,  §  6. 

I  now  go  on  the  hypothesis  that  the  legislature  can  con- 
stitutionally repeal  a  law  under  which  parties  have  acquired 
inchoate  rights,  not  perfected  by  full  and  complete  satis- 
faction ;  e.  g.,  while  Lewis  was  pursuing  his  right  to  the 
penalty  of  $30  incurred  by  defendant,  legislature  could  in- 
terpose an  effectual  barrier  in  his  way,  by  repealing  the  law 
on  which  his  action  was  founded ;  so,  if  the  public  were 
prosecuting  defendant,  for  this  offence,  by  indictment  or 
information,  and  the  legislature  should,  as  they  doubtless 
might,  repeal  the  law  before  final  sentence  or  punishment 
inflicted,  the  offender,  in  these  cases,  would  be  saved  from  the 
pains  and  penalties  he  had  justly  incurred. 

One  would  think,  as  this  would  be  a  consummation  de- 
voutly to  be  wished  by  every  offender,  so  it  would  satisfy 
every  reasonable  rogue.  But  this  defendant  goes  farther. 
He  asks  us  to  pay  him  for  his  suffering,  to  give  him  back 
the  penalty  he  has  justly  paid  for  his  offences.  lie  is  not 
even  contented  with  that.  He  must  have  his  costs  from  the 
beginning;  and  the  costs  must  be  paid  by  one  legally  pursu- 
ing a  public  statute  of  the  State,  and  to  an  offender.  A 
State  which  should  thus  deal  by  its  good  and  bad  citizens 
would  not  long  have  any  obedient  subjects.  Lord  Mans- 
field, in  Couch,  qui  tarn,  v.  Jeffries,  stated  a  case  almost  as 
bad  as  this,  intending  to  state  what  all  would  agree  was 
absurd  and   unjust. 


DECEMBER   TERM,   1815.  427 

Lewis  V.  Foster. 

It  is  to  be  remembered  that,  even  in  our  system  of  juris- 
prudence, the  trial  at  May  Term,  1813,  was  a  final  trial ;  and 
that  on  review,  though  the  party  may  have  the  benefit  of  any 
new  and  further  evidence,  the  law  must  be  the  same. 

An  individual  in  this  State  once  thought  he  had  some  right 
to  complain  that  the  legislature,  bj'  repealing  a  statute,  took 
away  his  right  to  review  his  action.  This  defendant  wishes 
not  only  to  have  the  right  of  review,  but  to  have  the  legis- 
lature pave  the  way  for  a  reversal,  by  changing  the  law 
applicable  to  the  plaintiffs  case,  i.  e.  take  away  the  plain- 
tiff's law. 

The  repeal  of  this  law  has  done  the  defendant  no  injury  ; 
but,  upon  his  construction,  it  will  have  done  the  plaintiff  a 
most  cruel  injury. 

[It  is  supposed  that  the  above  views  were  communicated  to 
the  other  judges  in  consultation,  but  not  publicly  announced. 
Judge  Smith's  minute  on  the  papers  is,  —  "December,  1815. 
No.  29  continued.     Ellis  hesitante.'"} 

[The  cause,  remaining  pending,  was  transferred,  by  the  judi- 
ciary act  of  1816,  to  the  Superior  Court;  and  was  there 
decided  at  May  Term,  1817.  The  opinion,  as  reported  in 
1  N.  H.  61,  is  as  follows :] — 

Richardson,  C.  J.  We  are  of  opinion  that  the  plaintiff's 
right  of  action  is  taken  away  by  the  repeal  of  the  law  on 
which  it  was  founded.  It  is  clear,  if  the  law  had  been  re- 
pealed before  the  first  judgment,  the  plaintiff  could  not  have 
recovered.  United  States  v.  Mann,  1  Gall.  177;  Yeaton  v. 
United  States^  5  Cranch,  281.  By  our  statute  of  Feb.  9, 
1791,  §  12  ;  1  Laws,  108,  it  is  provided  that  a  cause  shall 
be  tried  upon  review  in  the  same  manner  as  if  no  judgment 
had  ever  been  given. 

The  first  judgment  was  rendered  for  the  plaintiff,  subject,  by 
law,  to  a  review,  in  which  the  whole  merits  of  the  case  could 
be  drawn  in  question. 

Every  right  he  acquired  by  that  judgment  was  subject  to 
be  lost  on  review  of  the  cause.  We  are  to  try  the  cause  in 
the  same  manner  as  if  there  had  never  been  a  judgment ;  but 


428  CHESHIRE. 


Lewis  V.  Foster. 


we  now  find  no  law  that  will  warrant  a  judgment  in  favor  of 
the  plaintiff. 

The  verdict  must  be  set  aside,  and  a  verdict  entered  for  the 
defendant.  Judgment  for  the  defendant.^ 

^  The  Superior  Court  afterwards  virtually  overruled  their  own  decision 
in  Leu'is  V.  Foster,  and  used  language  which  supports  Smith,  C.  J.,  in  his 
positions:  1st.  That  the  legislature  had  not  the  power  to  defeat  the  plain- 
titf' 8  action  by  repealing  the  statute  on  which  it  was  founded;  2d.  That 
even  if  a  repeal,  during  the  pendency  of  the  original  action,  would  have 
defeated  the  plaintiff,  still  a  repeal  after  the  plaintiff  had  obtained  judg- 
ment could  not  avail  the  defendant  upon  a  review. 

The  first  position  is  sustained  by  Dotv  v.  Norris,  1827,  4  N.  H.  16, 
which  decides  that,  where  a  statute  gives  a  penalty  to  an  individual,  his 
right  cannot  be  taken  away  by  a  repeal  of  the  statute,  although  no  pro- 
ceedings for  its  recovery  have  been  commenced  at  the  time  of  the  repeal. 
See  also  Richardson,  C.  J.,  in  Woart  v.  Winnick,  1826,  3  N.  H.  473, 
480,  481 ;  Sawyer,  J.,  in  Lakeman  v.  Moore,  1855,  32  N.  H.  410,  412,  413  ; 
Pembroke  v.  Epsom,  1862,  44  N.  H.  113.  In  explanation  of  the  decision 
in  Letvis  v.  Foster,  it  was  said  by  Richardson,  C.  J.,  that  the  constitu- 
tional objection  to  the  validity  of  the  repealing  statute  was  neither  raised 
by  counsel  nor  considered  by  the  court.    See  4  N.  H.  20 ;  3  N.  H.  480, 481. 

As  to  the  second  point,  the  opinion  of  the  Superior  Court,  reported  in 
1  N.  H.  61,  62,  is  based  upon  a  construction  of  the  statute  relative  to 
reviews,  which  is  quite  irreconcilable  with  subsequent  decisions  of  the  same 
court. 

♦'  From  the  very  nature  of  the  case,  no  matter  which  has  arisen  since  the 
judgment  can  be  pleaded  in  bar  of  the  original  action.  If  the  verdict  and 
judgment  were  originally  right,  nothing  which  has  since  occurred  can  make 
them  wrong."  Richardson,  C.  J.,  in  Burley  v.  Hurley,  1833,  6  N.  H. 
204.  "  It  is  not  to  be  disputed  that  the  cause  is  to  be  tried  upon  review  in 
the  same  manner  as  if  no  judgment  had  been  rendered  therein.  But  what 
is  the  meaning  of  this?  Surely  not  that  every  thing  which  takes  place 
after  the  first  trial  shall  be  used  in  evidence  on  the  second  trial,  in  the 
same  manner  as  if  it  had  taken  place  before  the  first  trial.  ...  It  seems 
to  us  that  the  meaning  of  this  clause  is  only  this:  the  first  judgment  shall 
have  no  weight  in  the  trial  of  the  cause  the  second  time,  but  shall  be 
wholly  disregarded,  as  furnishing  no  evidence  of  the  real  facts  of  the  case 
for  or  against  either  party."  Richardson,  C.  J.,  in  Messery.  Swan,  1828, 
4  N.  H.  481,  487.  ".  .  .  The  controversy  rests  on  the  merits  as  they 
originally  existed."  Upham,  J.,  in  Knox  v.  Knox,  1841,  12  N.  II.  352,  354. 
See  also  Otis  v.  Currier,  1845,  17  H.  H.  463;  Edgerly  v.  Emerson,  1827, 
4  N.  H.  147;  Foster  v.  Plummer,  1849,  3  Cush.  381,  Shaw,  C.  J.,  383; 
Foster,  J.,  in  Zollar  v.  Janvrin,  1869,  49  N.  H.  114,  117.     The  final  ver- 


DECEMBER   TERM,  1815.  429 


Swett  V.  Horn. 


GRAFTON,    DECEMBER   TERM,    1815. 


Benjamin  Swett  v.  Amos  Horn. 

An  officer  attaclietl  a  horse,  and  delivered  it  to  a  receiptor,  who  engaged  to  return 
it  on  demand.  The  receiptor  allowed  the  horse  to'  go  back  into  the  debtor's 
possession,  where  it  was  attached,  by  another  officer,  upon  another  writ  against 
the  debtor.  The  receiptor  then  took  the  horse  from  a  stable,  where  it  had  been 
placed  by  the  second  officer,  and,  without  any  demand  on  him,  delivered  the 
horse  to  the  first  officer,  who  received  it  in  ignorance  of  the  second  attachment. 
Subsequently,  the  second  officer  regained  possession  of  the  horse. 

Held,  that  the  delivery  by  the  receiptor  to  the  first  officer  was  not  a  compliance 
with  the  receiptor's  engagement. 

Trover  for  a  horse  and  mare. 

Plea:  the  general  issue.  Trial.  Verdict  for  plaintiff,  which 
the  defendant  moved  to  set  aside. 

Two  questions  were  considered  at  the  Law  Term.     The  de- 

dict,  on  review,  takes  effect  as  of  the  date  of  the  former  verdict.  Foster, 
J.,  in  Shepard  v.  Hatch,  1873,  54  N.  H.  96,  99. 

Where  the  writ  of  review  is  brought  by  a  defendant  against  whom  the 
original  plaintiff  has  obtained  judgment,  "  it  is.  in  effect,  a  new  action  to 
recover  back,  in  the  shape  of  damages,  what  the  defendant  alleges  has 
been  wrongfully  obtained  from  him,  by  an  erroneous  decision,  upon  the 
first  trial ;  the  mode  by  which  he  attempts  to  recover  being  by  trying  over 
again  the  original  cause  of  action,  and  making  it  appear  that  the  plaintiff 
has  no  right  to  sustain  a  suit  against  him,  or,  at  least,  was  not  entitled  to 
recover  so  much  as  he  has  obtained.  The  proceeding  is  often  called  an 
action  of  review.  And,  when  thus  brought  by  a  defendant,  it  may,  so  far 
as  its  operation  is  concerned,  be  considered  analogous  to  an  action  for 
money  had  and  received,  to  recover  back  money  obtained  by  duress  or 
some  false  claim."  Parker,  C.  J.,  in  Knox  v.  Knox,  1841,  12  N.  H.  3.52, 
358. 

In  Lewit  V.  Foster,  the  "  new  matter  arising  after  the  first  judgment  " 
was  not  of  such  a  nature  as  to  avoid  the  plaintiff's  action  from  the  be- 
ginning; nor  did  it  arise  from  a  voluntary  act  of  the  original  plaintiff. 
Upon  both  these  grounds  the  case  is  distinguishable  from  Barker  v.  Wen- 
dell, 1841,  12  N.  H.  119. 


430  GRAFTON. 


Swett  V.  Horn. 


cision  upon  one  of  these  questions  is  not  here  reported.  The 
facts  material  to  the  understanding  of  the  decision  upon  the 
other  point  are  stated  in  the  opinion.^ 

Smith,  C.  J.     The  case  is  this  :  — 

The  i)hvintiff,  a  deputy  sheriff,  June  2,  1812,  attached  the 
horses  in  question,  on  writ,  Samuel  ^  James  Hutchins  v. 
Clarke,  and  delivered  them  to  defendant  [on  his  written 
promise],  to  re-deliver  on  demand.  Defendant  suffered  them 
to  return  to  the  debtor's  possession.  Another  writ  was  ob- 
tained against  the  same  debtor  in  favor  of  another  creditor 
(Newgate  State  Prison),  and  delivered  to  another  deputy 
sheriff  [Edson],  who,  finding  the  horses  in  Clarke's  posses- 
sion, July  4,  1812,  attached  them,  and  took  them  into  his  pos- 
session. The  defendant,  to  get  rid  of  his  responsibility  to 
plaintiff,  took  the  horses  from  Edson's  custody,  i.  e.  from  sta- 
ble in  which  he  had  put  them,  and  delivered  them  to  plaintiff, 
though  plaintiff  had  made  no  demand.  Judgment  was  not  yet 
recovered.  Plaintiff,  then  ignorant  of  the  fact  of  any  lawful 
attachment,  or  any  attacliment,  by  Edson,  received  them  (it 
is  not  stated  whether  writing  delivered  up  to  defendant). 
Edson,  immediately  after,  demanded  the  horses  of  plaintiff. 
Plaintiff  then  offered  them  to  defendant  (to  settle  the  matter 
with  Edson,  and  judge  for  himself  whether  Edson  could  hold). 
Defendant  refused  to  accept.  Edson  then  took  the  horses ; 
and  plaintiff  now  calls  on  defendant,  on  the  ground  that  the 
delivery,  July  4,  1812,  was  unlawful,  and  acceptance  by 
mistake. 

The  contract^  was  that  the  delivery  should  be  such  as  that 
Hutchins's  execution  might  be  levied  ;  whereas  defendant  had 
conducted  in  such  a  manner  that  no  such  delivery  could  be 
made  after  Edson's  attachment.  He  had  disabled  himself  from 
making  a  proper  delivery.  Edson  had  a  lien  on  the  horses, 
and  could  lawfully  take  them  from  plaintiff;  and  all  by  defend- 
ant's unfaithful  conduct  as  bailee. 

1  Statement  of  case  by  compiler. 

*  I.  e.,  in  legal  construction.  The  report  of  the  judge  who  tried  the 
cause  shows  that,  in  words,  the  contract  was  "to  return  them  on  demand." 


DECEMBER   TERM,   1815.  431 

Swett  V.  Horn. 

The  intention  of  the  parties  in  the  contract  sued  is  appar- 
ent. Defendant  was  bound  to  same  safe-keeping  as  plaintiff 
would  have  been  ;  i.  e.,  to  have  the  horses  forthcoming  on 
Hutchins's  execution.  He  broke  his  contract  when  he  suf- 
fered the  horses  to  return  to  debtor's  possession  ;  i.  e.,  he  ran 
the  risk  of  any  other  creditor  attaching,  debtor  selling,  &c., 
and  so  disabling  him  to  perform.  The  effect  of  this  engage- 
ment was  to  return  the  horses  to  plaintiff,  so  that  the  execu- 
tion might  be  levied  on  them,  and  plaintiff  exonerated  from 
his  responsibility  to  S.  &  J.  Hutchins,  the  creditors. 

There  was  an  apparent  delivery,  but  no  real  delivery.  It 
was  a  fraudulent  delivery,  an  unlawful  one,  a  deceptive  one. 
The  property  was  changed,  and  the  delivery  availed  nothing, 
left  plaintiff  liable  to  S.  &  J.  Hutchins. 

I  think  this  performance  comes  the  nearest  the  case  in  the 
books,  where  a  man  engaged  to  deliver  a  horse ;  he  poisoned 
him,  and  then  delivered  him.  This  was  held  no  performance 
of  his  engagement.     2  G.  Bacon,  82,  and  note. 

Judgment  on  the  verdict.^ 

^  "If  the  receipt  is  in  common  form,  and  the  officer  lawfully  demands 
the  property,  the  receiptor  must  deliver  it  to  him  free  from  intervening 
rights,  or  become  liable.  If  the  property  has  been  sold,  it  could  not  avail 
the  receiptor  to  deliver  it  to  the  officer,  subject  to  a  title  in  a  third  person, 
acquired  since  the  receipt  was  given.  It  must,  when  delivered,  be  subject 
to  a  levy  in  the  same  manner  as  when  he  received  it,  or  the  receiptor  will 
not  be  exonerated."  Hibbard,  J.,  in  Batchelder  v.  Putnam,  1873,  54 
N.  H.  84,  86. 


UNITED    STATES   DISTRICT   COURT. 


NEW  HAMPSHIRE  DISTRICT,  MAY,  1801. 


William  Kennedy,  Libellant,  v.  Ebenezer  Ricker,  Hiram 
Rollins,  and  John  Lord,  Owners  of  the  Brigantine 
Washington,  and  Two  Hogsheads  of  Molasses. 

An  American  vessel,  captured  by  a  French  privateer;  Nov.  25,  1800,  was  rescued 
from  the  captors,  Nov.  28,  1800,  by  the  captain,  who  was  also  a  part-owner, 
assisted  by  one  seaman,  the  rescuers  being  ignorant  of  the  convention  between 
the  United  States  and  France,  entered  into  Sept.  30,  1800. 

Upon  a  libel  in  the  United  States  District  Court,  heard  and  determined  prior  to 
the  final  ratification  of  the  treaty,  salvage  was  allowed  to  the  seaman. 

Libel  for  salvage,  for  rescuing  the  brigantine  from  the 
French  captors,  Nov.  28,  1800. 

Plea :  denying  right  to  salvage. 

William  Kennedy,  the  libellant,  deposes  that  he  was  a 
mariner  on  board  the  brigantine  Washington.  The  brig  was 
taken  by  a  French  privateer  between  St.  Vincent  and  St. 
Lucia  ;  all  the  hands  taken  out  except  the  captain  (Ricker, 
one  of  the  respondents)  and  the  libellant ;  and  six  of  the 
privateer's  men  put  on  board  :  steered  for  Gijadaloupe.  The 
brig  remained  sixty  hours  in  possession  of  the  French  captors. 
The  captain  and  the  libellant  agreed  to  attempt  a  rescue.  The 
captain  (Ricker),  to  induce  the  libellant  to  assist  in  the 
enterprise,  said  that  one-eighth  was  allowed  for  salvage  in 
such  cases. 

About  six  o'clock  in  the  morning  of  Nov.  28,  1800,  Ricker 
and  the  libellant  attacked  and  mastered  the  Frenchmen,  and 


MAY,  1801.  433 

Kennedy  v.  Ricker. 


the  same  day,  about  three  o'clock  p.m.,  carried  the  vessel 
into  Dominica,  Prince  Rupert's  Bay.  When  they  came  into 
this  port,  the  captain  of  an  English  armed  brig  claimed  to 
share  salvage  with  Ricker  and  the  libellant,  and  threatened 
the  libellant  with  corporal  punishment  if  he  would  not  swear 
that  the  English  brig  was  in  sight  at  the  time  of  the  rescue. 
This  the  libellant  refused  to  do.  The  English  captain  let 
him  go. 

At  the  time  of  the  rescue  no  wages  were  due  the  libellant. 

Matthew  Marsh,  sworn  for  libellant,  deposes  he  purchased 
the  brigantine  Washington,  February,  1801,  for  $8,333,  cash,  at 
Portsmouth.  She  had  undergone  repairs,  say  $100  or  $200. 
Property  was  all  condemned  in  the  Islands  in  December 
last.  This  vessel  offered  for  $8,000  in  Boston.  Vessels  rose 
in  value. 

Jacob  Cutter,  sworn  for  libellant.  Molasses,  February, 
1801,  worth  here  $55  to  $58.  Insurance  fell  when  convention 
with  France  ratified  by  United  States  Senate,  not  before. 
Property  of  this  kind  about  half  the  value  in  the  West  Indies 
as  here. 

Capt.  Wardrobe,  sworn  for  libellant.  No  abatement  of 
insurance  till  convention  ratified  by  United  States  Senate. 
Condemnations  speedy  in  West  Indies,  sometimes  twenty -four 
hours,  never  more  than  a  week. 

M.  Simes  confirms  Wardrobe,  and  adds  that  property  was 
often  sold  without  condemnation. 

Capt.  Ricker,  sworn  by  consent  for  respondents.  Does  not 
recollect  telling  Kennedy  any  thing  about  salvage  till  after 
recapture.  Place  of  rescue  was  eight  leagues  from  Dominica, 
and  eighteen  leagues  from  Guadaloupe.  Confirms  Kennedy's 
testimony,  except  as  above.  The  vessel  was  bound  from 
Surinam  to  Boston  when  captured.  Jf  he  had  known  of 
convention  with  France,  would  not  have  risked  recapture. 
Heard  of  the  convention  at  Dominica.  Might  have  arrived  at 
Guadaloupe  as  soon.  Property  at  Dominica  generally  valued 
fifty  per  cent  below  the  value  here. 

Mr.  William  Seavey,  sworn  for  respondents,  agrees  with 
Ricker  as  to  the  value  of  property  in  West  Indies. 

28 


434  NEW   HAMPSHIRE   DISTRICT. 

Kennedy  v.  Ricker. 

May  25,  1801.     Judgment  of  the  Court. 

Smith,  J.i  The  brigantine  Washington,  Capt.  Ricker,  with 
a  cargo  of  sugar  and  rum,  on  her  homeward  voyage  from 
Surinam  to  Boston,  on  Nov.  25,  1800,  off  St.  Lucia,  was  cap- 
tured by  a  French  privateer,  the  Fleur  de  Mer,  of  Guadaloupe. 
The  mate  and  six  of  the  crew  of  the  brigantine  were  taken 
out,  and  six  Frenchmen  belonging  to  the  privateer  put  on 
board,  and  the  brig  ordered  to  make  for  Basseterre,  Guada- 
loupe. On  the  morning  of  the  28th  of  the  same  November, 
after  the  brigantine  had  remained  about  sixty  hours  in  posses- 
sion of  the  captors,  Capt.  Ricker  and  the  libellant  (who  were  the 
only  persons  of  the  former  crew  on  board),  having  previously 
concerted  a  plan  for  retaking  the  brigantine,  rose  upon  the 
captors  and  mastered  them.  This  rescue  happened  when  the 
vessel  was  to  the  leeward  of  Dominica  and  in  sight  of  Guada- 
loupe. About  three  o'clock  the  same  day  the  rescuers  carried 
the  vessel  to  Prince  Rupert's  Bay  in  Dominica,  and  from 
thence  to  Roseau,  another  port  in  the  same  island,  where  the 
captain  made  the  protest  which  is  filed  in  the  cause.  From 
thence  the  captain  proceeded,  with  the  brig,  to  St.  Christo- 
pher's, and  to  St.  Thomas's,  and  from  the  latter  place  to  Boston, 
where  the  greatest  part  of  the  cargo  was  sold.  The  Washing- 
ton then  came  to  this  port  (Portsmouth)  with  the  two  hogs- 
heads of  molasses  now  in  the  custody  of  the  marshal.  The 
brig  had  been  sold  by  the  owners  before  this  suit  was  insti- 
tuted. Upon  these  facts  arises  the  claim  of  the  libellant,  if  he 
has  any,  to  salvage. 

The  owners,  Ricker,  Lord,  and  Rollins,  appear  on  the  moni- 
tion which  issued,  claim  the  molasses  seized,  and  say  that 
for  any  thing  set  forth  in  the  libel  (which  comprehends 
in  substance  the  facts  just  stated)  salvage  ought  not  to  be 
decreed. 

Salvage  is  the  recompense  paid  to  persons  who  have  assisted 
in  saving  ships  or  goods  from  the  dangers  of  the  seas,  from 
pirates,  or  from  enemies.     3  Wooddes.  132,  n./. 

^  Judge  Smith  was  then  one  of  the  justices  of  the  United  States  Cir- 
cuit Court,  and  sat,  upon  this  occasion,  in  the  place  of  the  United  States 
District  Judge. 


MAY,  1801.  435 

Kennedy  v.  Kicker. 


I.  It  is  contended,  in  this  case,  that  there  was  no  capture  by 
any  enemy,  and  consequently  no  right  to  salvage  for  rescue  or 
recapture. 

It  must  be  admitted  that  a  seizure  by  a  friend  or  neutral, 
though  unlawful  and  such  as  may  subject  the  seizors  to  dam- 
ages, will  not  authorize  a  recapture  or  rescue.  1  Rob.  Adm. 
233. 

No  doubt  is  entertained  in  this  case,  on  either  side,  that  the 
captors  acted  under  the  authority  of  the  French  Republic. 
Whether  there  was,  at  the  time  of  this  capture,  such  a  state 
of  hostility  existing  between  the  United  States  and  the 
French  Republic  as  to  raise  a  title  to  salvage  for  American 
goods  retaken  from  the  French  is  the  question.  To  consti- 
tute such  a  state  of  hostility,  it  is  not  necessary  that  there 
should  be  a  declaration  of  war  on  either  side.  2  Heinec.  192. 
Is  there  a  single  individual  in  this  country  who  does  not  know 
that,  for  a  long  time  before  this  capture,  predatory  hostilities 
against  our  commerce  had  been  carried  on  by  the  public  and 
private  armed  vessels  of  the  French  Republic  ;  and  that 
American  property,  in  the  French  courts,  had  been  uniformly 
condemned  as  enemy's  property  ? 

But  what  seems  decisive  on  this  question  is,  that  the  Wash- 
ington, at  this  very  time,  was  authorized,  by  the  laws  of  the 
United  States,  to  resist  search  and  seizure  by  French  cruisers. 
Act  June  25,  1798,  148.  This  is  a  declaration,  by  the 
supreme  power  in  this  country,  that  France  was  not  a  friendly 
power  ;  because,  in  such  cases,  it  is  unlawful  to  resist  search  or 
seizure. 

If  it  was  lawful  to  resist  seizure  in  this  case,  it  must  be  law- 
ful to  rescue  the  property  seized.  Accordingly  the  same  law 
of  Congress  provided  that  armed  vessels  and  merchant  vessels 
of  the  United  States  might  lawfully  recapture  vessels  taken 
by  the  French.  Act  March  3,  1800,  38;  Act  May  28, 
1798,  120;  Act  June  25,  1798,  148.  It  would  be  absurd 
to  say  that  the  owners  might  not  lawfully  do  that  for  them- 
selves which  others  might  lawfully  do  for  them. 

If  the  French  are  not  to  be  considered  as  enemies,  then 
they  are  friends.     For  there   is  no  intermediate   state  as  it 


436  NEW   HAMPSHIRE   DISTRICT. 

Kennedy  v.  Kicker. 

respects  questions  of  salvage.  And  then  this  rescue  is  higWy 
reprehensible,  and  an  injury  done  to  the  owners,  inasmuch  as 
it  deprives  them  of  their  claim  to  costs  and  damages  for  an 
unjust  seizure  and  detention.  Will  the  owners,  in  this  case, 
gravely  contend  that  they  have  suffered  an  injury  hy  the 
doings  of  Ricker  and  Kennedy  ?  And,  if  they  should  so  con- 
tend, where  would  they  find  persons  credulous  enough  to 
believe  them  ? 

But,  besides  all  this,  I  am  clearly  of  opinion  that  it  is  not 
competent  for  the  owners  to  set  up  this  defence  against  the 
present  claim  to  salvage.  Rickei-,  the  other  salvor,  was  him- 
self both  an  owner  and  captain.  If  we  may  credit  him,  he 
was  the  moving  cause  of  this  rescue.  Now,  in  both  these 
capacities,  the  other  owners  are  bound  by  his  acts.  1  Rob. 
232.  And  it  is  as  much  against  law  as  it  is  against  good  con- 
science to  suffer  them  now  to  object  to  the  necessity  and  legal- 
ity of  an  act  which  originated  with  themselves,  and  in  which 
they  bore  so  considerable  a  part. 

II.  But  it  is  said,  admitting  that  there  was  once  such  a  state 
of  hostility  subsisting  between  the  United  States  and  France 
as  to  raise  a  title  to  salvage,  the  situation  of  the  two  countries 
was  totally  changed  by  the  convention  signed  the  third  of  Oc- 
tober last  (1800).  But  this  is  ascribing  too  much  influence  to 
such  an  instrument.  Notwithstanding  the  convention,  even 
when  ratified  on  both  sides,  the  hostile  character  of  the  two 
nations  may  remain  the  same  as  before.  The  convention  only 
imposes  an  obligation  on  the  two  nations,  mutually  to  restore 
property  captured  before  the  exchange  of  ratifications.  But 
1  do  not  think  that  the  courts  of  law  can  take  any  notice  of 
the  treaty  till  ratified  by  the  supreme  power  on  both  sides; 
any  more  than  they  could  take  notice  of  an  act  of  Congress 
before  it  is  laid  before  the  President  for  his  approbation. 
Courts  of  law  are  bound  to  decide  according  to  the  existing 
state  of  things.  There  is  every  reason  to  conclude  that  the 
convention  will  be  ratified  ;  yet  it  may  not ;  and  it  would  be 
cruel,  as  it  respects  the  libellant,  to  dismiss  his  claim,  if  other- 
wise well  founded,  on  a  contingency  which  may  never  happen. 

But  I  think  we  may  lay  all  this  out  of  the  case,  for  the  rea- 


MAY,  1801.  437 

Kennedy  v.  Ricker. 


sons  alreadj'^  mentioned.  The  owners  of  the  Washington  are 
bound  by  Ricker's  doings.  It  is  too  late  for  them  now  to  elect 
to  consider  the  French  as  friends,  or  to  rely  on  the  convention 
for  security  of  their  property.  They  have  chosen  a  different 
course.  They  requested,  and  they  had,  the  aid  of  the  libel- 
lant,  at  the  hazard  and  peril  of  his  life.  And  it  surely  comes 
with  a  very  ill  grace  from  them,  now  that  the  benefit  is  con- 
ferred, and  every  thing  done,  and  faithfully  done,  on  his  part, 
to  refuse  him  the  just  recompense  of  reward.  If  the  danger 
to  which  their  property  was.  exposed  appears  less  to  the  owners 
now  that  it  is  past  (which  is  a  common  case)  than  it  did  then, 
this  does  not  lessen  the  merit  of  the  libellant's  services.  At 
all  events,  I  think  it  must  be  admitted  by  the  owners  them- 
selves, by  a  very  moderate  exercise  of  candor,  that  it  is  much 
better  for  them  to  have  their  property  restored  on  a  reasonable 
salvage  than  to  incur  the  risk  of  a  condemnation  before  the 
summary  tribunals  of  Guadaloupe,  and,  in  the  event  of  a  con- 
demnation, to  seek  indemnification  from  the  justice  of  the 
French,  which  has  become  of  as  little  estimation  in  modern 
times  as  the  Punica  fides  of  ancient  days. 

The  other  objections  which  have  been  urged  against  the 
claim  of  the  libellant  I  can  hardly  suppose  were  expected  to 
have  much  influence  in  forming  the  judgment  of  the  Court. 

The  right  of  salvage,  in  cases  of  rescue  as  well  as  recapture, 
and  the  right  of  mariners  to  be  salvors  as  well  as  strangers,  are 
founded  on  principles  of  justice  and  equity,  and  well  estab- 
lished by  judicial  decisions.     1  Rob.  233,  234. 

On  this  part  of  the  case  I  have  never  found  myself  for  a 
moment  inclining  to  doubt ;  and  I  have  no  hesitation  in  saying 
that  the  causes  set  forth  in  the  libel  are  sufficient,  that  they 
are  well  supported  in  evidence,  and,  consequently,  that  the 
libellant  is  entitled  to  a  reasonable  recompense  for  his  services 
in  effecting  the  rescue. 

This  claim  is  founded  on  the  jus  gentium.  1  Rob.  263,  n. 
I  wish  the  same  law  which  gives  the  right  had  laid  down  some 
rule  to  guide  my  judgment  as  to  the  quantum  of  reward. 

If  this  vessel  and  cargo  had  been  recaptured  by  a  public 
vessel  of  the  United  States,  the  salvage  would  have  been  one- 


438  NEW   HAMPSHIRE   DISTRICT. 

Kennedy  v.  Ricker. 

eighth  ;  if  by  a  private  vessel,  acting  under  authority  from  the 
government  of  the  United  States,  one-sixth.  Act  March  3, 
1800,  38. 

It  is  not  necessary,  in  this  case,  that  I  should  fix  the  rate  or 
amount  of  salvage,  as  Captain  Ricker  makes  no  claim.  It 
seems  highly  equitable  that  the  salvors,  in  the  case  of  recapture 
by  a  private  uncommissioned  vessel,  should  receive  as  much  for 
salvage  as  if  the  recapture  were  made  by  a  private  commis- 
sioned vessel.  And  I  can  see  no  reason  why  the  rule  which 
prevails  in  the  case  of  recapture  should  not  be  applied  to  cases 
of  rescue. 

In  fixing  the  compensation  in  this  case,  I  feel  that  it  is  my 
duty  to  give  such  a  sum  as  would  ordinarily  be  sufficient  to 
engage  reasonable  mariners  to  encounter  the  peril  and  danger 
of  the  undertaking.  3  Dall.  190.  It  is  for  the  interest  of 
merchants  that  I  should  do  so. 

It  is  laid  down  by  writers  on  this  subject,  that  the  character 
and  condition  of  the  person  is  a  fit  circumstance  to  form  a  ma- 
terial consideration  in  distributing  the  reward,  1  Rob.  151, 
239.  It  is  very  certain  that  what  would  be  a  suitable  and  ample 
reward  to  one  man,  for  a  hazardous  enterprise,  would  be  no 
adequate  compensation  to  another. 

Appreciating  as  well  as  I  can  all  the  circumstances  proper 
for  my  consideration,  I  allow  the  libellant  $GQ6.  (a)  This  I 
consider  as  a  full  and  adequate  compensation  for  a  hazardous 
enterprise,  conducted  with  skill  and  courage,  and  described  by 
the  libellant,  in  his  attestation,  with  laudable  modesty,  (i) 

I  sincerely  regret  that  the  owners  or  underwriters  (to  which- 
soever it  belonged)  have  not  felt  themselves  bound  in  honor  to 
do,  without  compulsion,  what  I  must  consider  as  nothing  but  an 
act  of  strict  justice.    They  might,  in  this  way,  have  procured  for 

(a)  This  was  about  one-third  of  one-sixth  of  the  value  of  the  vessel 
and  cargo. 

The  property  on  the  rescue  immediately  became  revested  in  the  former 
owners ;  and  the  rescuers  became  immediately  entitled  to  their  reward, 
not  to  any  specific  part.  The  benefit  conferred  is  the  value  of  the  prop- 
erty when  carried  to  a  place  of  safety.     2  Wooddes.  455;  2  Burr.  693. 

(6)  The  libellant  was  an  African.  On  his  examination  he  discovered 
great  modesty  and  candor. 


MAY,  1801.  439 

Kennedy  v.  Ricker. 


themselves  the  satisfaction  resulting  from  the  bestowment  of  a 
reward  where  it  was  most  justly  earned,  and,  I  imagine,  at  a 
diminished  expense.  Viewing  the  libellant's  claim  as  just  and 
meritorious,  —  one  concerning  which  sensible  men  and  liberal 
merchants  could  not  entertain  any  reasonable  doubt,  —  and  not 
having  been  informed  that  any  propositions  have  been  made 
to  the  libellant  which  might  have  prevented  this  suit,  I  allow 
him  his  costs,  (a)  ^ 

The  money  was  paid  according  to  this  decree. 

(a)   See  2  Rob.  279,  The  War  Onskan,  Dec.  19,  1799.     In  point. 

1  I.  In  Bns  V.  Tingy,  1800,  4  Dall.  37,  salvage  was  allowed  for  the 
recapture  of  an  American  vessel  from  French  captors,  and  in  Talbot  v. 
Seeman,  1801,  1  Cranch,  1,  for  the  recapture  of  a  neutral  vessel.  In  both 
cases  the  capture  and  recapture  occurred  in  1799. 

II.  The  convention  between  the  United  States  and  France  was  con- 
cluded Sept.  30,  1800.  On  Feb.  3,  1801,  the  United  States  Senate 
consented  to  ratify  the  convention,  provided  a  certain  amendment  was 
made.  On  July  31,  1801,  the  French  government  consented  to  the  amend- 
ment, but  added  a  further  proviso.  "These  ratifications,  having  been 
exchanged  at  Paris,  were  again  submitted  to  the  Senate  of  the  United 
States,  which,  on  the  19th  of  December,  1801,  declared  the  convention 
fully  ratified,  and  returned  it  to  the  President  for  promulgation."  Pro- 
claimed Dec.  21,  1801. 

"  Treaties  and  Conventions  between  the  United  States  and  Other 
Powers  since  July  4,  1776."     Washington,  1871. 

III.  That  seamen  are  entitled  to  salvage  for  recapturing  their  vessel 
from  the  enemy  was  distinctly  held  in  Clayton  v.  Ship  Harmony,  1  Pet. 
Adm.  Dec.  70.  See  also  3  Kent,  Com.  247;  Story,  J.,  in  Williams  y. 
Suffolk  Ins.  Co.,  1838,  3  Sumn.  270,  275. 

In  2  Pars.  Ship.  &  Adm.  ed.  1869,  317,  n.  4,  some  doubt  is  expressed 
on  this  point;  but  the  case  there  cited,  Phillips  v.  AT  Call,  1821,  4  Wash. 
C.  C.  141,  was  not  a  case  of  forcible  recapture,  but  of  ransom. 


SUPERIOR   COURT   OF    JUDICATURE. 


HILLSBOROUGH,   NOVEMBER  TERM,  1807. 


David  Buebank  v.  James  Norris. 

B.  and  N.  made  a  parol  submission  of  all  demands  to  arbitration.  Among  other 
demands  in  favor  of  N.,  the  arbitrators  allowed  the  face  of  an  execution,  omit- 
ting, by  mistake,  to  deduct  a  partial  payment  indorsed  thereon.  A  written 
award  was  made  in  favor  of  N.  for  a  sum  of  money,  which  B.  subsequently 
paid. 

Held,  that  B.  could  not  maintain  assumpsit,  for  money  had  and  received,  against 
N.,  to  recover  the  amount  indorsed  on  the  execution. 

This  was  assumpsit,  to  recover  $8.69,  money  had  and  re- 
ceived to  the  plaintiff's  use  (there  was  a  second  count  for  (|40 
had  and  received,  inserted  probably  with  a  view  to  give  the 

C.  C.  P.  jurisdiction). 
Plea  :  the  general  issue. 

On  the  trial,  at  last  Terra,  the  facts  appeared  to  be  [as 
follows  :]  — 

Dec.  9,  1806,  plaintiff  and  defendant  submitted  (by  parol) 
all  demands  to  arbitration.  Award  in  favor  of  defendant  for 
$13.82,  payable  in  thirty  days,  and  costs  $7  ;  a  final  settle- 
n:3nt.  The  award  was  made  in  writing.  The  parties  agreed 
to  abide  the  award,  and  signed  a  writing  to  that  effect ;  and 
the  sum  awarded  has  been  paid. 

In  computing  the  demands  of  Norris  against  Burbank, 
amongst  others  an  execution  was  produced  and  the  face  of  it 
allowed  ;  but  there  was  an  indorsement  on  it  of  the  costs, 
$8.69,  which  was  omitted  by  mistake  of  the  arbitrators. 


NOVEMBER   TERM,   1807.  441 


Burbank  v.  Norris. 


As  theie  was  no  controversy  about  the  facts,  it  was  agreed 
that  the  facts,  as  here  stated,  should  be  turned  into  a  case 
stated  for  the  opinion  of  the  Court. 

Webster,  for  plaintiff. 
Harris  (?),  for  defendant. 

Smith,  C.  J.,  delivered  the  opinion  of  the  Court. 

I.  It  is  very  clear  that,  if  the  parties  had  settled  without 
the  intervention  of  arbitrators,  this  action  would  have  been 
maintainable.  So,  if  the  submission  had  been  informal,  and 
the  award  only  advisory,  or  not  binding  ;  if  the  arbitrators  had 
been  merely  assistants  at  the  settlement. 

II.  This  was  a  regular  and  binding  award.  It  is  a  general 
rule  that  such  an  action  as  the  present  does  not  lie  to  relieve 
against  mistah?s  in  judgments ;  because  it  would  defeat  the 
great  end  of  judgment,  which  is,  that  it  puts  a  final  end  to 
controversy.  The  merits  cannot  be  re-examined.  If  re-ex- 
aminable  at  the  instance  of  one  party,  they  must  be  so  at  the 
desire  of  the  other;  the  whole  account  must  be  gone  over 
again.  And  this  equally  applies  to  awards.  There  is  a 
method  of  setting  them  aside.  If  that  is  not  pursued,  and 
they  are  submitted  to,  they  stand  on  the  same  footino-  as 
judgments  as  to  this  matter,  their  conclusive  effect.  In  New- 
land,  admr,  v.  Douglass,  2  Johns.  62,  it  was  determined  that, 
where  arbitrators  chosen  by  the  parties  make  a  mistake  in 
the  calculation  of  the  sum  to  be  awarded,  an  action  at  law 
will  not  lie  to  correct  the  mistake  ;  and  that  the  evidence  of 
the  arbitrators  to  prove  the  mistake  is  not  admissible.  In 
that  case  it  was  said  that  a  court  of  chancery  may  correct  pal- 
pable mistakes  or  miscalculations  made  by  the  arbitrators,  and 
3  Atk.  (644)  was  cited.  But  the  bill  was  there  brought  to 
set  aside  an  award.  Here,  the  award  has  been  submitted  to. 
I  am  not  prepared  to  say  that,  where  an  attempt  is  made  to 
have  the  benefit  of  an  award  (and  in  this  State,  where  the 
submission  is  not  a  rule  of  court  or  justice,  it  must  be  by  suit 
at  law),  it  would  not  be  a  good  plea  that  there  was  a  mistake 


442  HILLSBOROUGH. 


Burbank  i;.  Norris. 


of  this  kind  ;  ^  certainly  it  is  a  good  objection  to  the  accep- 
tance of  a  report  or  award  of  referees  made  pursuant  to  a 
rule. 

Williams  et  ah,  exrs,  v.  Paschall,  4  Dull.  284,  was  debt 
on  arbitration  bond.  Plea :  that  the  arbitrators,  from  mis- 
take and  misapprehension  of  the  law,  calculated  interest  on 
the  face  of  a  bond,  and  not  on  the  payments  ;  nor  were  the 
payments  deducted  in  the  computation,  at  the  time  when 
made.  Demurrer.  It  was  determined  that  the  plea  was 
bad. 

One  ground  why  rehef  should  not  be  given  in  case  of  mis- 
take made  on  one  side  is  that  there  may  have  been  equal  or 
greater  mistakes  on  the  other  side,  which  cannot  be  rectified 
except  by  going  over  the  whole  ground. 

In  the  present  case  it  may  be  said  that  this  matter  (the 
indorsement  of  $8.69,  on  the  execution)  has  never  been  con- 
sidered and  adjudicated  on  by  the  arbitrators,  and,  therefore, 
the  parties  are  not  bound  by  the  award  in  this  particular,  and 

1  "  Having  no  court  of  chancery,  it  is  impossible  that  we  should  ever 
have  adopted  the  doctrine  that  an  award  cannot  be  impeached  in  pleading, 
and  avoided  by  matter  de  hors.  I  think  we  may  safely  lay  it  down  as  law, 
in  this  State,  that  an  award  may  be  impeached  as  well  for  corruption,  par- 
tiality, misbehavior,  &c.,  of  the  arbitrators,  as  for  legal  objections  appear- 
ing on  the  face  of  the  award.  Whatever  would  be  sufficient  in  England 
to  set  aside  an  award,  either  in  a  court  of  law,  by  motion  in  a  summary 
way,  or,  in  a  court  of  equity,  by  bill,  or,  in  this  State,  by  way  of  objection 
to  a  report  of  referees,  or  to  destroy  an  award  when  offered  in  evidence 
in  an  action  on  the  original  cause  of  action,  may  be  pleaded  in  avoidance 
of  the  award,  when  the  action  is  on  the  award  itself,  or  on  the  bond  of 
submission."  Smith,  C.  J.,  in  Knowlion  y.Judkins,  Rockingham,  Febru- 
ary Term,  1805,  9  Manuscript  Reports,  163,  171. 

The  reason  for  this  doctrine  was  taken  away  by  the  statute  of  1832,  con- 
ferring equity  powers  upon  the  Superior  Court ;  and  it  is  now  held  that 
corruption,  misconduct,  or  mistake  of  law,  on  the  part  of  the  arbitrators, 
cannot  be  pleaded  at  law,  by  way  of  defence  to  the  award,  or  to  the  sub- 
mission-bond. Fletcher  v.  Hubbard,  18G1,  43  N.  H.  58;  Elkins  v.  Page, 
1864,  45  N.  H.  310. 

In  Hale  v.  Handy,  1853,  26  N.  H.  20G,  215,  Gilchrist,  C.  J.,  said, 
"that  where  the  arbitrator's  mistake  is  one  of  mere  arithmetical  computa- 
tion, there  seems  to  be  no  reason  why  the  matter  may  not  be  inquired  into 
in  a  suit  at  law." 


NOVEMBER   TERM,  1807.  443 

Burbank  v.  Norris. 

that  Burbank,  as  to  this,  is  not  concluded.  1  G.  Bacon,  207, 
216,  232;  2  Tidd,  751,  752  (sed  vide  Willes,  268,  7  Mod. 
8vo  ed.,  849,  S.  C.)  ;  2  Sellon,  351 ;  7  G.  Bacon,  396  ;  Chr. 
Notes,  III.  459. 

In  Ravee  v.  Farmer,  4  T.  R.  146,  it  was  determined  that 
an  award  made  upon  a  reference  of  all  matters  in  difference 
between  the  parties  does  not  preclude  the  plaintiff  from  suing 
on  a  cause  of  action  subsisting  against  the  defendant  at  the 
time  of  the  reference,  upon  proof  that  the  subject-matter  of 
such  action  was  not  laid  before  the  arbitrators,  nor  included  in 
the  matters  referred.  The  evidence,  in  such  case,  goes  to  show 
that  the  matter  sued  was  not  included  in  the  reference  because 
not  in  difference.  The  only  question,  as  Lord  Mansfield 
said  in  another  case,  was  whether  submission  of  matters  in 
difference  is  a  submission  of  matters  not  in  difference.  All 
matters  in  difference  are  not  the  same  as  all  causes  of  action 
subsisting,  or  all  demands.  In  the  present  case,  all  demands 
were  submitted  ;  and  no  authority  can  be  produced  that,  in 
such  case,  evidence  is  admissible  to  show  that  a  particular 
demand  was  not  considered. ^  The  strongest  case  in  favor  of 
such  proof  is  Seddon  v.  Tutop,  6  T.  R.  607.  The  plamtiff 
sued  defendant  on  a  promissory  note,  and  for  goods  sold 
and  delivered.  Defendant  was  defaulted.  Writ  of  inquiry, 
and  verdict  for  the  amount  of  the  note  only.     A  suit,  after- 

1  Contra,  Whittemore  v.  Whittemore,  1819,  2  N.  H.  26;  Upham,  J.,  in 
Elliott  v.Quimby,  1812,  13  N.  H.  181,  183;  and  see  Wyman  v.  Perkins, 
1859,  39  N.  H.  218,  222. 

But  if  it  be  conceded  that  the  award  would  not  preclude  Burbank  from 
maintaining  an  action  on  one  of  his  demands  which  the  arbitrators  omit- 
ted to  consider,  still  this  concession  does  not  establish  his  right  to  recover 
the  sum  of  |8.69.  As  to  that  sum,  Burbank  had  no  "  demand  "  against 
Norris.  The  payment  was  merely  matter  of  defence  to  the  claim  of  Nor- 
ris on  the  execution.  There  is  no  pretence  that  Burbank  could  have 
maintained  an  action  against  Norris  for  that  sum  previous  to  the  award. 
The  question  before  the  arbitrators  was.  How  much  is  due  Norris  on  the 
execution  ?  Their  decision  on  this  question  is  not  rendered  a  nullity  by 
the  fact  that  they  overlooked  an  important  piece  of  evidence,  which,  if 
taken  into  consideration,  would  have  materially  reduced  the  amount  to  be 
awarded. 


444  HILLSBOROUGH. 


Burbank  v.  Norris. 


wards,  was  brought  for  the  price  of  the  goods,  and  held  main- 
tainable. In  that  case  the  causes  of  action  were  widely 
different,  and  stated  in  different  counts. 

The  parties  in  this  case  entered  judgment  by  agreement  for 
defendant.^ 

1  Where  a  partial  payment  is  made  upon  a  debt,  but  the  creditor  after- 
wards recovers  judgment  for  the  whole  original  claim  without  deduction, 
can  the  debtor  maintain  an  action  to  recover  back  the  amount  of  the  par- 
tial payment? 

If  the  defence  of  partial  payment  was  actually  (though  unsuccessfully) 
set  up  in  answer  to  the  creditor's  suit,  the  judgment  will,  of  course,  estop 
the  debtor  from  again  litigating  the  question.  Rogers  v.  Porter,  1799,  1 
Dane,  Abr.  187. 

If  the  debtor,  though  not  setting  up  the  defence  of  partial  payment, 
appears,  and  pleads  to  the  merits  on  other  grounds,  the  weight  of  authority 
is  that  the  judgment  precludes  him  from  bringing  a  subsequent  action  to 
recover  back  the  payment.  Loring  v.  Alansjield,  1821,  17  Mass.  391.  See 
also  Driicoll  v.  Damp,  1863,  17  Wis.  419;  De  Sylva  v.  Henry,  1836,3 
Port.  (Ala.)  123.  (In  Woodward  v.  Hill,  1857,  6  Wis.  Ii3,  it  seems  to 
have  been  held,  that,  if  the  debtor  sets  up  no  defence  other  than  a  de- 
murrer, which  is  overruled,  he  is  not  precluded.) 

If  the  creditor's  judgment  was  recovered  by  default,  the  American  au- 
thorities are  not  agreed  as  to  the  effect  of  such  judgment  upon  the  debtor's 
action  to  recover  back  payments  not  credited. 

That  the  judgment  is  a  bar  to  such  an  action  was  held  in  Tilton  v.  Gor- 
don, 1817,  1  N.  H.  33  (overruled  in  Snow  v.  Prescolt,  cited  post) ;  Binck  v. 
Wood,  1864,  43  Barb.  315;  Jordan  v.  Phelps,  1849,  3  Cush.  545  (where  the 
debtor  filed  a  defence  of  partial  payment,  but  subsequently  withdrew  his 
appearance  and  suffered  default)  ;  Corey  v.  Gale,  1841,  13  Vt.  639.  In 
the  following  cases  the  judgment  was  held  a  bar,  but  it  does  not  distinctly 
appear  whether  the  judgment  was  obtained  by  default.  Fuller  v.  Shattuck, 
1859,  13  Gray,  70 ;  Mitchell  v.  Sandford,  1847,  11  Ala.  695 ;  Broughlon  v. 
Mcintosh,  1840,  1  Ala.  103.  See  also  Kirklan  v.  Brown^s  Adm'rs,  1843, 
4  Humph.  174;  Bote's  Heirs  v.  Stickney,  1860,  36  Ala.  482;  Siiarswood, 
J.,  in  Hopkins  v.  West,  1876,  83  Pa.  St.  109.  In  England,  a  judgment 
by  default  would  undoubtedly  be  considered  a  bar.  In  Huffer  v.  Allen, 
1866,  L.  R.  2  Exch.  15,  it  appeared  that  the  debtor  made  a  partial  pay- 
ment while  suit  was  pending,  but  the  creditor  afterwards  took  judgment  by 
default  for  the  full  amount,  and  the  debtor  was  arrested  on  the  execution 
and  paid  the  sum  demanded.  The  debtor  then  brought  an  action  against 
the  creditor,  for  maliciously  and  without  probable  cause  signing  judgment 
and  issuing  execution.  Held,  that  the  judgment,  whilst  it  stood  for  the 
full  amount,  precluded  this  action.     The  plaintiff's  counsel  admitted  that 


NOVEMBER   TERM,   1807.  445 

Burbank  v.  Norris. 

he  could  not  maintain  assumpsit  for  money  had  and  received ;  and  the  law 
is  so  stated  by  Channell,  B.,  in  his  opinion. 

That  a  judgment  by  default  is  not  a  bar  was  held  in  Snoto  v.  Prescoit, 
1842,  12  N.  H.  535  (cited  with'  approval  in  28  N.  H.  574,  and  39  N.  H. 
162) ;  Rorve  v.  Smith,  1820,  16  Mass.  306  (now  "  considered  as  overruled; " 
Hoar,  J.,  in  Fuller \.  Shailuck,  ubi  svp.)\  Smith  v.  Weeks,  26  Barb.  463 
(overruled  in  Binckv.  Wood,  ubi  sup.)\  Woodward  v.  Hill,  1857,  6  Wis. 
143;  Clay  v.  Clay,  1854,  13  Tex.  195  (where  the  partial  payment,  instead 
of  being  made  the  ground  of  a  separate  action,  was  allowed  to  be  shown  in 
defence  to  a  suit  on  the  judgment).  See  also  Dillon,  J.,  in  Doyle  v. 
Reilly,  1864,  18  Iowa,  108. 

In  the  above  classification.  Snow  v.  Prescott  has  been  placed  with  the 
cases  relative  to  judgments  by  default,  because  the  judgment,  the  effect  of 
which  was  there  considered,  was  obtained  in  that  manner.  But  one  of  the 
grounds  of  that  decision,  viz.,  the  theory  of  "  rescission,"  is  by  no  means 
confined  to  judgments  by  default,  but  applies  also  to  judgments  rendered 
in  suits  where  the  debtor  appeared  and  contested  the  case  upon  the  merits 
(upon  any  other  defence  than  that  of  payment).  The  "  rescission  " 
theory,  if  carried  out  to  its  logical  results,  does  not  stop  with  overthrow- 
ing the  decision  in  Tilton  v.  Gordon.  It  is  equally  at  variance  with  the 
leading  case  of  Harriot  v.  Hampton,  37  Geo.  III.  7  T.  R.  269;  s.  c.  2 
Smith's  L.  Cas.  393.  Possibly,  the  very  sweeping  effect  of  this  theory 
may  induce  a  careful  re-examination  of  the  reasoning  by  which  it  is  sup- 
ported. 

A  judgment  in  favor  of  the  creditor,  for  the  full  amount  of  his  claim, 
does  not  preclude  the  debtor  from  maintaining  an  action  to  recover  the 
value  of  property  which  he  had  previously  delivered  to  the  creditor,  with 
the  expectation  that  it  would  be  applied  in  reduction  of  the  debt  upon  a 
future  adjustment  of  accounts,  but  which  was  not  delivered  as  a  present 
payment.  Strong  v.  McConnel,  1838,  10  Vt  231 ;  and  see  Cushman  v.  Es- 
tate of  Hall,  1856,  28  Vt.  656.  Upon  the  literal  phraseology  of  the  state- 
ment of  facts  in  Snow  v.  Prescott,  an  attempt  might  possibly  have  been 
made  to  bring  that  case  within  this  principle.  But  the  plaintiff's  counsel, 
and  the  judge  who  delivered  the  opinion,  both  conceded  that  the  case  was 
not  distinguishable  in  principle  from  Tilton  v.  Gordon,  where  there  was  no 
attempt  to  represent  the  delivery  of  the  property  in  any  other  light  than  as 
a  partial  payment. 

If  a  negotiable  note  is  transferred  under  such  circumstances,  that  the 
defence  of  partial  payment  to  the  payee  cannot  be  set  up  against  the  in- 
dorsee, a  judgment  against  the  maker  for  the  face  of  the  note  does  not 
preclude  him  from  recovering  the  amount  of  such  payment  from  the  payee. 
Conn.  Sf  Pass.  R.  R.  Co.  v.  Newell,  1858,  31  Vt.  365,  372.  Otherwise,  if 
this  defence  was  open  to  the  maker  as  against  the  indorsee.  Shaw,  C.  J., 
in  Sacket  v.  Loomis,  1855,  4  Gray,  148,  150 ;  Corey  v.  Gale,  1841,  13  Vt. 
639. 


446  HILLSBOROUGH. 


Burbank  v.  Norris. 


The  reasons  urged  in  support  of  Rowe  v.  Smith,  ubi  sup.  (see  3  Cush. 
oil),  did  not  exist  in  Burbank  v.  Norris.  In  the  latter  case,  there  was  no 
breach  of  the  creditor's  undertaking  to  indorse  the  payment;  the  indorse- 
ment was  actually  made.  Nor  did  the  debtor  suffer  a  default.  The  error 
in  the  adjudication  was  due  to  an  oversight  on  the  part  of  the  tribunal, 
not  to  the  fraud  or  mistake  of  the  prevailing  party.  In  Snow  v.  Prescott, 
the  plaintiff's  counsel  admitted  that,  if  the  indorsement  had  been  made, 
the  judgment  would  have  been  a  bar. 

In  Neiolandv.  Douglass,  1806,  2  Johns.  62  (cited  in  the  above  opinion), 
the  arbitrators,  instead  of  allowing  the  prevailing  party  too  much,  allowed 
him  too  little,  in  consequence  of  a  mistake  in  the  subtraction  of  figures 
in  making  up  the  award.  Held,  that  he  could  not  maintain  an  action  to 
recover  the  amount  of  the  mistake. 


EXTRACTS 


JUDGE    SMITH'S    MANUSCRIPT   TREATISE   ON 
PROBATE   LAW.^ 


[Of   the    Statute   Provision   that    a     Person    lawfully   seised 

AND    possessed    OF    LaNDS    "  SHALL    HAVE    PoWER   TO    GIVE,  DEVISE, 
AND     DISPOSE     OF     ThEM,    AS    WELL    BY    HIS     LAST    WiLL    AS    BY   ANY 

OTHER  Act  duly  executed."] 

The  testamentary  power  conferred  by  the  act  is  only  co- 
extensive with  the  power  of  alienating.     It  was  not  the  inten- 

^  This  work  was  styled  by  the  author,  "An  Essay  on  the  Law  of 
Descent  and  of  Last  Wills  and  Testaments."  It  is  in  two  manuscript 
volumes,  and  would  probably  make,  in  print,  from  five  to  six  hundred 
pages. 

Judge  Smith  was  appointed  judge  of  probate  for  Rockingham  County 
in  1800,  and  served  for  a  short  time.  The  treatise  was  probably  composed, 
or  at  least  commenced,  while  he  held  that  office.  The  New  Hampshire 
statutes,  which  are  frequently  referred  to  in  the  text,  are  always  cited 
from  the  edition  of  1797,  not  from  that  of  1805 ;  thus  fixing  the  date  of 
composition  as  between  the  issuing  of  those  two  editions.  Notes  and  cita- 
tions of  authorities  were  occasionally  added  afterwards;  one  note  bearing 
date  as  late  as  1841. 

It  is  not  known  that  the  author  ever  contemplated  the  publication  of 
this  work;  but  the  manuscript  vpas  made  use  of  by  other  lawyers  (e.  g., 
Chief  Justice  Richardson,  and  Mr.  Webster,  and  probably  Mr.  Mason). 

It  will  be  seen  that  the  extracts  here  made,  aside  from  those  relating  to 
local  statutes  and  usages,  consist  largely  of  criticisms  on  some  doctrines 
laid  down  as  law  in  the  reports  and  text-books  of  that  period.  But  it 
would  be  a  mistake  to  infer  that  the  treatise  is  mainly  composed  of  criti- 
cisms.    Great  care  was  evidently  taken,  and  much  space  occupied,  by  the 


448  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


tion  of  the  legislature  to  create  a  capacity  where  there  was 
none  before,  but  only  to  enlarge  the  methods  of  alienation. 

[Municipal  Corporations  may  take  by  Devisk.] 

By  the  Statute  of  Wills,  bodies  corporate  are  expressly  ren- 
dered incapable  of  taking  a  devise.  2  Wooddes.  354 ; 
1  Swift,  326.  By  sundry  statutes,  corporations  are  disabled 
from  purchasing,  unless  they  have  a  license  for  that  purpose. 
These  restraining  statutes,  being  inapplicable  to  our  situation 
and  circumstances,  it  is  conceived,  were  never  received  and 
admitted  here.  And,  as  our  Statute  of  Wills  is  silent  on  the 
subject,  there  does  not  seem  to  be  any  good  reason  to  conclude 
that  our  town  corporations  may  not  acquire  lands  by  devise, 
as  well  as  by  purchase  in  its  more  limited  sense. ^ 

It  is  usual,  when  other  corporations  are  created,  to  insert  a 
clause,  enabling  them  to  hold  lands  to  a  certain  value  or 
amount. 

[Formalities  of  Wills  of  Lands,  and  Land  and  Goods.     Sealing.] 

The  will  must  be  sealed  by  the  testator. 

This  formality  is  peculiar  to  our  statute,  and  was  first  in- 
troduced by  the  act  of  Feb.  3,  1789.  It  is  an  unmeaning, 
useless  ceremony,  and  affords  no  security  against  fraud  or 
forgery. 

[Attestation.] 

As  to  the  subscription  of  the  witnesses ;  this  is  essential. 
But  they  need  not  subscribe  all  at  the  same  time,  nor  even  in 
the  same  year.^ 

By  this  doctrine,  that  the  witnesses  may  attest  at  different 

author,  in  stating  what  the  law  then  was,  before  indulging  in  speculations 
as  to  what  the  law  should  be;  but,  as  most  of  his  statements  of  the  then 
existing  law  are  substantially  similar  to  those  in  the  text-books  now  in 
common  use,  it  has  not  been  thought  desirable  to  draw  largely  from  them 
in  this  publication. 

1  See  Sargent  v.  Cornish,  1873,  54  N.  H.  18  ;  The  Dublin  Case,  1859, 
38  N.  H.  459;  2  Williams  on  Executors,  6th  Am.  ed.  1114,  n.  b. 

2  S.  P.  Gaylor's  Appeal,  1875,  43  Conn.  82;  Dewey  v.  Dewey,  1840, 
1  Met.  349;  1  WUliams,  Ex.  6th  Am.  ed.  121,  n.  s. 


EXTRACTS  449 


From  Manuscript  Treatise  on  Probate  Law. 


times  (4  Burn,  79),  an  inlet  is  made  for  great  frauds  and 
impositions,  (a)  After  one  witness  has  attested,  there  may 
have  been  an  erasure  or  interlineation.  The  intent,  doubtless, 
was  that  all  the  witnesses  should  be  together ;  they  would  be 
a  check  on  each  other.  It  may  even  be  asserted  that  a  parol 
disposition  before  three  witnesses  is  an  act  full  as  solemn  as  a 
will  in  writing  attested  by  three  at  different  times.  1  Vesey, 
Jr.  14.1 

[Whether  Jury   Trial   as   Matter  of  Right  upon  Appeal  from 
Probate  of  Will.] 

It  has  been  made  a  question,  whether  the  trial  in  the  Su- 
preme Court  of  Probate  should  in  any  case  be  by  jury.  Since 
the  Revolution,  on  appeals  from  decrees  approving  and  allow- 
ing wills,  at  the  Supreme  Court,  the  appellant  has  pleaded  that 
the  instrument,  allowed  by  the  judge  of  probate,  was  not  the 
last  will  and  testament  of  the  said  A.  B.,  and  tendered  an  issue 
to  the  country,  which  has  been  joined  (Prov.  Laws,  255).  (6) 
A  clause  in  the  act  of  25  Geo.  II.,  c.  6,  and  copied  into  our 
act,  relative  to  the  attestation  of  wills,  has  been  supposed 
to  favor  this  practice.  This  clause  provides  that  the  credit 
of  witnesses,  under  certain  circumstances,  shall  be  subject  to 
the  consideration  of  the  Court  "  and  jury,"  before  whom  they 

(a)  It  seems  by  the  law  of  Rome  to  have  been  necessary  to  a  valid 
testament  that  the  witnesses  should  be  all  present  at  the  same  time. 
1  Browne,  C.  L.  248. 

(6)  In  Massachusetts,  the  practice  is  for  the  appellant  to  file  the  reasons 
of  his  appeal.  If  one  of  these  be  that  the  testator  was  insane,  the  Court 
direct  an  issue.  The  appellees  (if  against  the  will)  plead  that  the  testator 
was  not  of  sound  mind,  &c. ;  (if  for  the  will)  that  he  was  of  sound  mind, 
&c.  The  other  party,  in  the  first  case,  reply,  affirming  the  sanity;  and  the 
answer  is  a  denial  as  before,  and  tender  of  issue.  In  the  second  case,  the 
replication  denies  the  sanity  and  tenders  an  issue. 

The  party  affirming  the  sanity  open  and  close.     1  Mass.  72,  336. 

^  By  the  statutes  now  in  force  in  Vermont  and  Connecticut,  the  wit- 
nesses are  expressly  required  to  subscribe  in  presence  of  each  other.  Gen. 
Stat,  of  Vermont,  377,  §  6  ;  Conn.  Stat,  of  1875. 

As  to  the  construction  of  Stat.  1  Vict.  oh.  26,  see  1  Williams,  Execu- 
tors, 6th  Am.  ed.  121 ,  n.  t. 

29 


450  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


shall  be  examined.  In  Great  Britain  the  clause  had  meaning ; 
wills  of  land  being  proved  before  a  jury.  Till  the  Revolution, 
and  while  the  act  of  Parliament,  proprio  vigors  suo^  was 
binding  here  (Prov.  Laws,  257),  the  words  "and  jury  "  were 
considered  as  equally  inoperative  witli  the  clause  which  relates 
to  "  the  court  of  equity  in  which  the  testimony  or  attestation 
of  witnesses  may  be  used." 

No  jury  was  ever  admitted  into  the  Supreme  Court  of  Pro- 
bate before  the  Revolution. 

The  twentieth  article  of  the  Bill  of  Rights  has  been  sup- 
posed to  affect  the  question.  But  it  may  be  remarked  that 
this  provision  would  not  only  comprehend  personal  testa- 
ments, but  would  make  a  jury  necessary  before  the  judge  of 
probate,  as  well  as  the  Supreme  Court  of  Probate.  But  if 
the  words,  "  except  in  cases  in  which  it  has  been,  heretofore, 
otherwise  used  and  practised,"  be  considered  as  referring  only 
to  the  usage  and  practice  before  the  Revolution,  then  this 
article  does  not  affect  the  question.^ 

[As    TO    USING   THE  WORD  "  DeVISE  "  IN  REFERENCE    TO    ReALTY,    AND 

"  Give,"  or  "  Bequeath,"  in  Reference  to  Personalty.] 

There  is  little  use  here  in  the  distinction,  which  is  not 
always  regarded  in  England.     1  Burr.  273  ;  1  East,  37,  n.^ 

[Of  the  Maxim  "that  the  Law  favors  Wills."] 

It  is  said  by  various  writers  "  that  the  law  favors  wills." 
4  Burn,  119  ;  2  Blackst.  381 ;  4  Burn,  437  ;  1  Dom.  550 ;  7  G. 
Bacon,  313.  If  this  is  to  be  understood  in  the  sense  men- 
tioned by  Doctor  Burn,  "  that  it  is  only  where  wills  favor 
the  law ;  or  in  the  sense  in  which  it  seems  to  be  used  by  Sir 
William  Blackstone  as  only  dispensing  with  the  necessity 

^  A  jury  trial  cannot  be  claimed  as  matter  of  right  upon  a  probate  ap- 
peal. Patrick  v.  Cowles,  1864,  45  N.  H.  553;  Smith,  J.,  in  Barnes  v. 
Abbott,  1875,  55  N.  H.  147,  148.  See,  also,  Appleton,  C.  J.,  in  Brad- 
ttreet  v.  Bradstreet,  1874,  64  Me.  204,  209 ;  Withee  v.  Rowe,  1858,  45  Me. 
571,  580,  581.  585. 

2  Compare  Gilchrist,  C.  J.,  in  Laddy.  Harvey,  18.50,  21  N.  H.  614, 
628. 


EXTRACTS  451 


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of  technical  language,  and  interpreting  them  according  to  the 
intention  of  the  maker,  it  seems  liable  to  no  just  exception. 
But,  if  the  maxim  is  to  be  understood  in  the  sense  in  which  it 
seems  to  be  used  by  Lord  Mansfield,  1  Burr.  420,  that  the 
law  respecting  wills,  and  wills  themselves  are  to  be  favorably 
expounded  so  as  to  encourage  and  enlarge  the  testamentary 
power,  because  wills  introduce  a  more  just  and  equitable  dis- 
tribution and  settlement  of  estates  than  that  which  takes  place 
by  the  la^  of  descent,  it  may  be  correct  as  it  respects  Great 
Britain  ;  but  it  is  conceived  that  it  is  far  otherwise  here. 
There  the  eldest  son  only  is  heir  ah  intestato.  And,  among 
collaterals,  not  all  the  next  of  kin,  but  one  often,  is  heir,  to  the 
exclusion  of  many  in  the  same,  and  some  in  a  nearer,  degree. 
Simple-contract  creditors  have  no  means  of  enforcing  payment 
of  their  just  debts,  unless  their  debtor  is  pleased  to  make  pro- 
vision, where  the  personal  estate  proves  insufficient  for  that 
purpose.  In  real  estates  the  succession  is  governed  by  the 
political  consequences  of  a  positive  system.  In  such  a  State 
the  testamentary  power  is  necessary,  to  enable  a  man  to  do 
justice  to  his  family  and  his  creditors.  In  this  State  the  very 
reverse  of  all  this  is  the  case.  All  the  children,  and  all  the 
next  of  kin  in  the  same  degree,  among  collaterals,  inherit  in 
equal  shares.  Creditors  of  every  description  have,  by  law,  as 
good  security  for  their  debts  as  the  debtor  can  give  them  by 
will.  The  rules  of  descent  are  not  governed  by  political  con- 
siderations, but  are  founded  on  natural  equity.  And  it  may 
well  be  questioned,  whether  the  will  which  the  law  makes  is 
not  generally  more  equitable,  just,  and  simple,  and,  of  course, 
more  easily  executed,  than  that  which  men  make  for  them- 
selves. So  far,  therefore,  from  adopting  the  maxim  that  tes- 
tamentary dispositions  are  to  be  favored,  it  would  seem  that 
the  law,  if  it  leans  at  all,  should  rather  incline  the  other  way.^ 

1  la  another  part  of  the  Treatise,  the  author  said  :  "  It  is  for  the  ad- 
vantage of  society  that  the  restrictions  on  the  testamentary  power  should 
be  few.  because  the  effect  of  such  restrictions  is  to  diminish  the  value  of 
property.  Wherever  the  powers  of  the  proprietor  are  limited,  the  incite- 
ments to  industry  are  weakened." 


452  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


[As  TO  Passing  a  Fee  by  a  Devise  without  Words  of  Inher- 
itance.] 

A  devise  of  lands  to  a  person,  without  words  of  limitation, 
or  any  intention  in  the  will  of  conferring  a  greater  estate,  only 
passes  an  estate  for  the  life  of  the  devisee.  4  Burn,  131 ;  4  G. 
Bacon,  256.  The  rule  in  deeds  of  conveyance  is  that,  where 
lands  are  conveyed  witliout  limiting  any  estate,  they  only  pass 
for  the  life  of  the  grantee  ;  this  rule  has  heen  adopted  in  tlie 
construction  of  wills.  1  Wash.  103,  109.  Common  sense 
would  have  dictated  that  an  absolute  estate  should  pass  by  a 
conveyance  without  any  limitation.  But  the  rule  was  adopted 
at  a  time  when  it  was  the  fashion  to  restrain  the  power  of  alien- 
ation, and  consequently  words  of  alienation  were  narrowed 
as  much  as  possible  in  their  signification. ^ 

[Satisfaction.     Criticism  on  the  Presumption  that  Bequest  to 
Creditor  is  meant  as  Satisfaction  of  Debt.] 

[After  stating  various  cases  where  the  legacy  will  not  be  re- 
garded as  satisfaction  of  the  debt.]  But  if  the  debt  due  from 
the  testator  to  the  legatee  was  due  in  the  testator's  lifetime, 
and  contracted  before  the  date  of  the  will,  and  there  is  noth- 
ing in  the  will  which  indicates  the  contrary,  the  legacy,  if  equal 
to,  or  greater  than,  the  debt,  shall  be  deemed  a  satisfaction. 
.  .  .  The  maxims,  that  a  man  must  be  just  before  he  is  gen- 
erous, and  debitor  non  presumitur  donare,  1  Kaimes,  Eq.  212, 
have  been  often  quoted  against  the  claim  of  the  legatee,  both 
to  the  debt  and  legacy. 

But  why  may  not  a  man,  if  he  has  wherewithal,  be  both 
just  and  bountiful?  3  Wooddes.  538.  And  why  should 
the  Court,  when  the  testator  professes  that  he  is  giving  a  leg- 
acy, that  is,  a  gift,  contradict  him,  and  say  that  he  is  paying  a 
debt? 

It  must  be  granted  that  he  who  only  possesses  the  ability  to 

1  The  rule  as  to  wills  has  been  changed  by  statute,  so  that  every  devise 
of  real  estate  is  held  to  pass  all  the  estate  of  the  devisor  therein,  "  unless 
it  shall  appear  that  it  was  his  intention  to  pass  a  less  estate."  Laws  of 
1822,  c.  28,  §  1;  Gen.  Laws,  c.  193,  §  4. 

As  to  deeds,  see  Cole  v.  Lake  Co.,  1874,  54  N.  H.  242. 


EXTRACTS  453 


From  Manuscript  Treatise  on  Probate  Law. 


pay  his  debts  shall  not  be  presumed  to  give  what  he  cannot 
give.^ 

[Conditions  in  Restraint  of  Marriage.] 

By  the  civil  law,  such  conditions  were  void,  because  illegal ; 
for  it  was  a  part  of  the  political  regulations  of  the  empire,  at 
the  time  the  maxim  was  introduced,  to  favor  marriage  by 
bounties  and  encouragements,  (a)  and  to  lay  impositions  on 
celibacy.  1  Bro.  C.  L.  35.  To  restrain  marriage  was  unlaw- 
ful ;  for  it  was  unlawful  not  to  be  married  ;  and  celibacy  was 
illegal. 

The  maxim  seems  to  have  been  introduced  into  the  English 
ecclesiastical  law  from  a  blind,  superstitious  adherence  to  the 
text  of  the  civil  law,  and  not  from  its  fitness  to  the  English 
system  of  laws,  to  which,  indeed,  it  seems  wholly  inapplicable. 
7  G.  Bacon,  494.  (6) 

Our  laws  neither  favor  nor  discourage  marriages.  Every 
individual  is  at  free  liberty  to  exercise  his  own  discretion  on 
the  subject.  And  there  seems  to  be  no  reason  why  testators, 
in  the  disposition  of  their  estates,  shall  not  be  at  liberty  to  im- 
pose conditions  on  their  children,  or  the  other  objects  of  their 
bounty,  as  to  the  time  and  circumstances  of  their  marriage. 
2  Bro.  437,  452,  488.  Children  under  twenty-one  ought  not 
to  contract  marriages  without  the  consent  of  their  parents  or 
guardians.  Com.  Rep.  749,  750,  751.  The  parent  who  gives 
an  estate  seems  at  least  entitled  to  the  appointment  of  a  guar- 
dian, with  a  negative  in  this  important  transaction,  (c)  ^ 

(a)  See  Cooper's  Just.  Inst.  170,  527. 

(h)  For  the  origin  of  the  English  law  on  this  subject,  see  3  Ves.  Jr.  89; 
7  G.  Bacon,  494. 

(c)  By  the  civil  law,  the  father  might  devolve  the  care  of  his  daughter's 
marriage  to  the  mother.  Si  in  arbitrio  matris  pater  esse  voluerit  cui  nuptum 
communis  filia  coUocaretur.     Dig    1,  32,  tit.  2,  §  2  ;  Com.  Rep.  749. 

1  The  rule  has  repeatedly  been  criticised,  and  courts  lay  hold  of  slight 
circumstances  to  take  cases  out  of  its  o'^eration. 

2  These  criticisms  are  directed  against  the  earlier  English  law.  The 
author  proceeds  to  state  modern  modifications  of  the  old  law,  giving  prac- 
tical effect  to  such  conditions  in  many  instances. 


454  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


[The  Term  "Succession"  preferable  to  "Descent."] 

It  is  to  be  regretted  that,  with  the  maxims,  we  have  not 
more  frequently  adopted  the  terms  and  definitions  to  be 
found  in  the  civil  law.  Succession  might  be  substituted  in 
the  place  of  descent,  which  is  wholly  inapplicable  to  a  system 
which  calls  ascendants  to  the  inheritance.  A  more  correct  and 
comprehensive  definition  of  the  subject  of  the  present  chapter 
might  be  drawn  from  the  writings  of  the  civilians ;  namely, 
that  succession  is  the  way  by  which  the  estate  of  him  who  dies 
intestate  passes  to  the  person  appointed  by  law  to  succeed  and 
represent  him.     1  Dom.  542. 

[Origin  of  the  Law  of  Descent.] 

Before  w^e  proceed  to  examine  the  rules  established  by  law 
for  the  purpose  of  determining  in  every  case  who  are  the  per- 
sons called  to  the  succession,  it  may  not  be  amiss  briefly  to 
point  out  the  sources  whence  those  rules  are  deduced,  and  the 
causes  that  led  to  their  introduction  here. 

It  is  a  doctrine  well  established  in  England,  that,  as  law  is 
the  birthright  of  every  subject,  British  subjects  settling  in  a 
new  country  carry  their  laws  with  them.  Hutch.  Appendix, 
190-193.  It  does  not  require  the  sanction  of  authority  to  en- 
force a  principle  of  this  sort.  A  reverence  for  the  institutions  of 
the  country  that  gave  us  birth  is  a  principle  as  universal  and 
operative  as  any  in  our  nature  ;  and  it  is  very  certain  that  the 
first  settlers  of  this  country  both  felt  and  acknowledged  its  in- 
fluence, (a)  And  to  this  cause  may  we  attribute,  not  only  the 
excellence  of  our  present  system  of  laws,  but  many  excellent 
provisions  in  our  constitutions  themselves.  Whence  is  it,  then, 
that,  in  relation  to  this  very  important  branch  of  jurisprudence, 
—  the  rules  by  which  estates  descend,  —  they  adopted  a  system 
altogether  different  from  that  in  which  they  were  educated? 

It  is  well  understood  that  the  English  law  of  real  property  is 
of  feudal  origin.  And,  notwithstanding  the  improvement  made 
during  a  long  succession  of  years,  marked  by  the  gradual  progress 
of  arts,  science,  and  rational  freedom,  the  law  of  alienation  and 

(a)  1  Haz.  Coll.  270,  463  ;  Sullivau,  Land  Titles,  Appendix,  361. 


EXTRACTS  455 


From  Manuscript  Treatise  on  Probate  Law. 


descent  still  retains  strong  evidence  of  its  original,  (a)  The 
feudal  system  was  fitted  for  a  rude  and  warlike  people.  It  was 
the  offspring  of  despotism  ;  and,  perhaps,  it  is  not  going  too  far 
to  say  that  its  general  principles  are  essentially  necessary  to 
the  support  of  a  monarchical  and  aristocratical  form  of  govern- 
ment. It  is  very  certain  that  the  feudal  system  is  wholly 
incompatible  with  a  government  constituted  like  ours.  4  Burn, 
380.  (6)  The  settlement  of  this  country  was  not  effected  by 
conquest,  but  in  a  peaceable  manner.  The  persons  who  pur- 
chased the  lands  of  the  natives  were  at  liberty  to  adopt  such 
rules  for  the  transmission  and  conveyance  of  those  lands  as 
they  should  judge  best,  (c) 

This  event  took  place  at  a  time  when  the  English  nation 
were  far  advanced  in  civilization.  The  first  settlers,  compared 
with  their  ancestors  at  the  Norman  invasion,  were  highly  cul- 
tivated and  improved.     They  were  nearly  all  from  the  same 

(a)  Its  barbarous  and  savage  parent.     1  Bro.  C.  L.  34. 

(h)  The  feudal  system  was  extremely  unsuitable  to  colonists,  who  had 
a  wilderness  to  cultivate,  because,  by  giving  property  to  every  one,  the 
exertions  of  all  were  invigorated.     Chalmer's  Ann.  U.  C.  650. 

(c)  The  nations  of  Europe  are,  in  their  origin,  all  compositions  of  vic- 
torious and  vanquished  people.  Their  institutions  are  compositions  of 
military  power  and  religious  opinions.  The  European  doctrines  are  that 
freedom  is  the  grant  of  the  sovereign  to  the  people,  and  that  the  sovereign 
is  amenable  only  to  God.  These  doctrines  are  not  congenial  to  nations 
originating  in  colonial  establishments.  Colonies  carry  with  them  the  gen- 
eral laws,  opinions,  and  usages  of  the  nation  from  which  they  emanate, 
and  the  prejudices  and  passions  of  the  age  of  their  emigration.  The  North 
American  colonies  had  nothing  military  in  their  origin.  The  first  English 
colonies  on  this  continent  were  speculations  of  commerce.  They  com- 
menced precisely  at  the  period  of  that  struggle  in  England  between  liberty 
and  power  which,  after  long  and  bloody  civil  wars,  terminated  in  a  com- 
promise between  the  two  conflicting  principles.  The  colonies  were  founded 
by  that  portion  of  the  people  who  are  [were]  arrayed  on  the  side  of  liberty. 
They  brought  with  them  all  the  rights,  but  none  of  the  servitudes,  of  the 
parent  country.  Their  constitutions  were,  indeed,  conformably  to  the 
spirit  of  the  feudal  policy,  charters  granted  by  the  Crown.  But  they 
were  all  adherents  to  the  doctrine  that  the  charters  were  not  donations, 
but  compacts. 

J.  Q.  Adams.  Report  on  Weights  and  Measures,  1821.  See  Nat.  Gaz. 
(Walsh),  May  19,  1821. 


456  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


class  of  society,  and,  consequently,  approached  near  to  the 
standard  of  equality.  1  Hutch.  387.  They  were  inspired  with 
a  zeal  bordering  on  enthusiasm  for  civil  as  well  as  religious 
liberty.  They  were  capable  of  forming  and  maintaining  the 
freest  of  all  possible  forms  of  civil  government.  It  is  easy  to  see 
how  ill  adapted  to  such  men,  actuated  with  such  views,  were 
the  rules  and  maxims  of  the  feudal  system,  (a)  It  may  well 
be  doubted  whether  a  wilderness  could  be  settled  where  this 
system  prevails.  (6)  Absolute  dominion  over  the  soil,  when 
subdued  by  the  culture  of  man,  is  the  only  reward  that  can 
stimulate  men  to  encounter  the  perils,  hardships,  and  labor  of 
turning  the  wilderness  into  a  fruitful  field.  1  Life  of  Wash. 
826-328.  That  our  ancestors,  therefore,  should  feel  disposed 
to  reject  the  burdensome  doctrine  of  tenures,  the  canons  of 
descent,  and  the  restraints  on  alienation,  the  justice  and  policy 
of  which  began  to  be  called  in  question  at  home,  can  excite  in 
us  no  surprise  ;  but  it  is  not  easy  to  account  for  the  acquies- 
cence of  the  government  in  a  departure  from  the  laws  of  the 
parent  State,  in  matters  so  essential.  It  is  not  extravagant 
supposition  that  a  similar  change  in  Great  Britain  would  soon 
change  the  nature  and  form  of  the  British  government.  4  Burke, 
84.  And,  for  the  same  reason,  the  English  system  introduced 
here  would  have  preserved  the  colonies,  —  for  a  long  time,  at 
least,  —  in  obedience  to  the  parent  State.  The  politicians  of 
the  day  (1  Hutch.  387)  were  either  incapable  of  discerning  the 
consequences  which  flow  from  the  principles  they  tolerated ;  or 
(which  is  more  probable)  were  too  much  engrossed  in  the 
busy  scenes  of  the  moment  to  calculate  the  remote  conse- 
quences of  regulations  which  sufficiently  answered  the  purpose 
of  the  present  time,  (c) 

(a)  Indeed,  the  feudal  system  has  always  been  imposed,  not  chosen. 

The  Trustees  of  Georgia  attempted  to  introduce  a  modification  of  the 
feudal  system.  It  did  not  succeed.  2  Holmes,  Am.  Annals,  108,  139, 
188. 

(h)  See  Preface  to  Sullivan's  Maine  V.  and  MS.  Notes  Old  Records, 
passim. 

(c)  When  the  city  of  Amsterdam  meditated  a  settlement  at  New  Nether- 
lands (New  York},  it  was  among  the  conditions  offered  to   the  settlers, 


EXTRACTS  457 


From  Manuscript  Treatise  on  Probate  Law. 


Our  ancestors,  rejecting  the  English  rules  of  descent,  as 
wholly  inapplicable  to  their  situation  and  views  (1  Bro.  C.  L. 
33),  were  compelled  either  to  frame  a  new  system,  or  to  search 
for  one  already  formed  somewhere  else,  (a) 

Fortunately,  the  rage  for  system-making  was  not  so  great 
at  that  day  as  at  the  present.  Fully  occupied  with  the  active 
concerns  of  life,  they  had  not  leisure,  any  more  than  inclination, 
to  strike  out  a  new  path  in  the  difficult  field  of  legislation. 
At  this  time,  personal  property  in  Great  Britain,  from  the 
commercial  pursuits  and  industry  of  the  nation,  had  arisen  to 
a  degree  of  importance  unknown  to  earlier  times.  1  Bro.  C.  L. 
15.  At  the  Conquest,  and  for  centuries  after,  the  whole  per- 
sonal property  of  the  kingdom  was  so  inconsiderable  as  hardly 
to  merit  the  notice  of  the  legislature.  Over  this  species  of 
property  the  owners  were  permitted  to  exercise  the  most  per- 
fect dominion.  There  were  no  restraints  on  alienations.  It 
was  early  chargeable  with  debts ;  disposable  by  testament ; 
and,  where  no  will  was  made,  generally  distributed  among  the 
widow  and  children,  or  next  of  kin.  As  it  respected  succes- 
sions, testamentary  and  legal,  to  personal  property,  all  power 
was  in  the  hands  of  the  ecclesiastics ;  and  they,  for  reasons 
which  have  been  mentioned  in  another  place,  adopted  the  rules 
of  the  civil  law  as  regulated  by  the  constitutions  of  the  Empe- 

drawn  up  -with  the  approbation  of  their  High  Mightinesses,  the  States- 
General,  that  the  new  settled  country  should  (respecting  the  police  or  dis- 
tribution of  justice,  and  especially  the  matter  of  descents)  be  regulated  in 
the  same  manner  as  in  the  parent  State.     2  Haz.  Coll.  544,  1656. 

(a)  They  did  not  adopt  or  follow  the  common  law  of  England  at  the 
first  settlement  of  Massachusetts,  either  as  it  respects  civil  or  criminal 
jurisprudence.  In  the  latter,  they  professed  to  be  governed  by  the  judicial 
law  of  Moses,  as  far  as  it  was  of  a  moral  nature.  As  it  respects  civil  rights 
and  civil  injuries,  the  courts  were  governed  by  the  equity  of  each  case  as  it 
came  before  them. 

Nothing  like  a  code  of  laws  was  in  existence  till  1634.  Measures  were 
then  taken  to  compile  a  body  of  laws.  In  1648  it  was  completed.  The 
laws  made  between  those  periods  were  then  collected  together,  ratified  by 
the  General  Court,  and  first  printed.  1  Hutch.  384.  From  1640  to  1660, 
the  New  England  colonies  approached  very  near  to  independent  common- 
wealths. 2  Hutch.  10.  The  foundation  of  much  of  the  common  law  of 
those  colonies  was  laid  during  this  period. 


458  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


ror  Justinian.  1  Bro.  C.  L.  13.  This  system,  matured  by  the 
learning  and  experience  of  the  Roman  lawyers  and  judges, 
familiarized  to  our  ancestors  in  practice  (Harg.  Tracts,  544), 
popular  with  the  nation  (excepting  the  great  land-holders  and 
the  body  of  common  lawyers),  just  and  equal  in  its  principles, 
presented  to  our  ancestors  a  body  of  laws  ready  made  to  their 
hands,  every  way  applicable  to  their  situation,  and  embracing 
property  of  every  kind,  without  a  difference,  (a) 

To  remedy  some  supposed  defects  in  these  rules,  but  princi- 
pally to  insure  a  more  perfect  execution  of  them  (4  Burn, 
379  ;  2  P.  Wms.  447),  the  British  legislature,  in  1670,  passed 
the  Statute  of  Distributions.  The  great  outline  of  the  statute 
is  evidently  taken  from  the  118th  novel  of  Justinian.  Harg. 
Tracts,  544. 

What  the  law  was  in  this  State,  from  the  first  settlement  in 
1623  till  the  union  with  Massachusetts,  which  happened 
in  1641,  it  is  not  easy  to  say,  there  being  no  records  of  that 
period.  1  Belknap,  55.  (6)  During  the  union  we  were  gov- 
erned by  the  law  which  prevailed  in  Massachusetts.  The 
separation  took  place  in  |f  |f  •  Before  this  period,  the  Statute 
of  Distributions  was  passed.  It  was  probably  received  here 
as  binding,  and  in  practice  extended  to  real  as  well  as  personal 
estate,  (c)  It  was  not  till  1714  that  the  legislature  passed 
any  act  on  the  subject  of  wills  or  administrations.  Prov,  Law, 
45,  53,  104.  The  act  for  the  settlement  and  distribution  of 
the  estates  of  intestates  makes  mention  of  the  English  Statute 

(a)  Where  there  is  no  express  rule  in  the  case,  the  rule  of  the  civil  law 
is  to  be  followed.  And  where  the  civil  law  agrees  with  ours,  the  civil  law 
may  be  resorted  to  for  confirmation  and  explanation.  26  Mo.  Rev.  n.  8. 
172. 

(/>)  Mason  and  others,  in  their  Petition  to  the  King  (no  date,  supposed 
to  be  about  1660),  say  they  governed  New  Hampshire  and  Maine  according 
to  the  laws  of  England. 

It  appears  by  a  report  on  the  same  petition  that  Massachusetts  governed 
themselves  as  a  free  State,  and  did  not  conceive  themselves  bound  by  the 
laws  of  England.     2  Ilaz.  Coll.  575,  578. 

(c)  In  the  first  settlement  of  Massachusetts,  that  part  of  the  civil  law 
which  considers  real  estate  as  bona  was  adopted.  This  was  also  the  Jewish 
law.     1  Hutch.  394,  n. ;  Sir  W.  Jones,  67  Mo.  Rev.  148,  n.  11 ;  1  Hutch.  393. 


EXTRACTS  459 


From  Manuscript  Treatise  on  Probate  Law. 


of  Distributions  in  such  a  manner  as  implies  that  it  was  in  force 
here.     P.  L.  104. 

[Descent.     Computation  of  Degrees  of  Kindred.] 

The  laws  of  Massachusetts  and  Connecticut  expressly  de- 
clare that  the  degrees  shall  be  computed  by  the  rules  of  the 
civil  law.  Mass.  Laws,  8vo,  I.  85.  Our  statute  is  silent  as  to 
the  mode  of  computing  the  degrees  of  kindred. 

It  is  certain  that  we  have  adopted  no  part  of  the  canon 
law,  except  what  relates  to  the  probate  system  ;  and  no  part 
of  the  common  law  on  the  subject  of  descent.  Our  rules  of 
descent  are  nearly  a  transcript  from  the  Statute  of  Distribu- 
tions, which  is  borrowed  from  the  civil  law.  It  is,  therefore, 
reasonable  to  conclude  that  the  words  "  next  of  kin  "  and 
"degree  "  have  the  same  meaning  as  that  which  they  bear  in 
the  code  whence  they  are  taken. 

It  is  observable  that  the  Statute  of  Distributions  is  silent  as 
to  the  mode  of  computing  degrees ;  and  yet  the  civil-law  com- 
putation was  adopted.  4  Burn,  256,  357,  361,  364  ;  2  Blackst. 
504,  516. 

Where  the  right  of  representation  prevails  in  infinitum,  as 
in  the  English  law,  the  canon  and  civil  law  computation  will 
always  designate  the  same  person  as  next  of  kin.  2  Blackst. 
225.' 

But,  in  our  law,  representation  among  collaterals  does  not 
extend  beyond  nephews  and  nieces  of  the  intestate,  and,  there- 
fore, it  is  of  importance  that  the  mode  of  computing  the 
degrees  of  kindred  should  be  established  and  known.  With- 
out this  it  is  impossible  to  apply  the  rules  of  descent  to  the 
particular  cases  as  they  arise,  (a) 

(a)  Mr.  Swift,  in  his  Commentaries,  or  View  of  the  Laws  of  Connect- 
icut, is  mistaken  in  saying  that  '-'it  is  immaterial  which  mode  of  com- 
putation is  adopted  ;  the  result  will  be  the  same."  1  Swift,  280.  He  was 
probably  led  into  the  error  from  the  passage  in  the  Commentaries  which 
has  been  quoted,  without  considering  that  it  is  there  predicated  on  the 
idea  of  universal  representation. 

Professor  Christian,  in  his  notes  to  Blackstone's  Commentaries, 
vol.  2,  553,  555,  559,  expresses  an  opinion  that  the  canon-law  computation 


460  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


[Dower.  As  to  the  Injustice  of  the  Doctrine  that  the 
Widow  is  to  be  Endowed  of  all  the  Lands  of  which  the 
Husband  was   seised  during  the  Covf.rture.] 

It  is  not  my  intention,  in  this  place,  to  inquire  who  shall  be 
endowed,  and  of  what  estate  the  widow  may  claim  dower ; 
but  I  would  just  remark  that  the  English  rule  (2  G.  Bacon, 
356),  that  "she  shall  be  endowed  of  all  the  lands  of  which  the 
husband,  during  the  coverture,  was  seised,"  will  generally  be 
productive  of  much  injustice.  We  have  seen  the  reason,  or 
ground,  of  her  claim,  —  the  property  brought  to  the  husband  at 
the  marriage,  and  her  services  during  the  coverture.  To  ascer- 
tain what  proportion  these  usually  bear  to  the  property  of  the 
husband  at  the  commencement  of  the  connection,  and  his  acqui- 
sitions afterwards,  may,  in  any  country  and  at  any  given 
period,  be  susceptible  of  calculation  with  some  tolerable  degree 
of  accuracy.  Perhaps,  in  this  State,  allowing  her  what  our 
statute  provides  out  of  the  estate  of  which  the  husband  dies 
seised  and  possessed  may,  as  a  general  rule,  be  just  and  equi- 
table. There  may  be  cases  where,  on  account  of  her  dowry 
and  faithful  services,  she  is  entitled  to  much  more  ;  but  these 
may  be  set  off  against  those  cases  where  she  is  really  deserv- 
ing of  much  less.  It  is  of  the  nature  of  all  general  rules  to 
operate  injuriously  in  some  particular  cases.  The  rule  is  good 
where  it  promotes  general  justice. 

It  is  sometimes  mentioned  as  a  reason  for  allowing  the 
widow  dower  in  all  the  lands  of  which  her  husband  was 
seised  during  the  coverture,  that  otherwise  it  would  be  in  the 
power  of  the  husband  to  defeat  altogether  the  claim  of  dower  ; 
and  it  is  said  that  dower  is  one  of  the  things  the  law  favoreth. 
It  must  be  admitted  that  a  husband  may  squander  away  all 
his  estate  and  leave  nothing  for  his  wife  ;  but  this  is  an  evil 
which  cannot  be  guarded  against.  At  all  events,  this  possi- 
ble evil  ought  not  to  give  birth  to   a  principle  which,  under 

has  not  been  adopted  by  the  law  of  England.  He  is  of  opinion  that  the 
true  and  only. way  of  ascertaining  an  heir  at  law  in  any  line  or  branch  is 
by  the  representation  of  brothers  or  sisters  in  each  generation,  and  that 
the  introduction  of  the  computation  of  kindred,  either  by  the  canon  or 
civil  law,  into  a  treatise  upon  descents,  may  perplex  and  can  never  assist. 


EXTRACTS  461 


From  Manuscript  Treatise  on  Probate  Law. 


pretence  of  supplying  a  remedy,  will  produce  infinitely 
greater  mischief.  If  there  is  any  method  of  making  men 
good  husbands,  let  it  be  adopted  and  pursued  ;  but  this  is 
punishing  the  innocent ;  and  it  must  be  allowed  that  those 
who  are  the  least  deserving  generally  avail  themselves  of  the 
right  conferred  by  this  rigid  principle. 

The  most  that  could  reasonably  be  desired  would  be  to 
endow  the  wife  in  the  estate  of  the  husband  at  the  time  of  the 
marriage,  at  the  time  of  his  death,  or  at  any  one  time  during 
the  coverture.  But  this  is  doing  more.  Cases  may  be  put, 
and  they  are  not  unfrequent  in  this  State,  where  the  value  of 
the  dower,  adopting  the  English  law,  would  greatly  exceed 
the  value  of  the  husband's  estate  at  any  of  these  periods.  In 
England  such  cases  can  rarely  happen.  The  frequent  ex- 
changes of  real  estate  for  personal,  the  trafficking  in  lands,  the 
rise  of  lands  in  value  from  cultivation  in  a  new  country,  are 
circumstances  not  applicable  to  Great  Britain.  If  they  had 
been,  it  is  presumed  such  a  principle  never  would  have  been 
introduced  into  the  law  ;  or,  if  it  had  crept  in,  it  would,  long 
ere  now,  have  been  repealed. 

It  may  be  said  that  purchasers,  knowing  what  the  law  is, 
may  guard  against  these  evils  by  exacting  the  consent  of  the 
wife  to  the  conveyance.  It  is  admitted  that  such  consent 
would  generally  be  obtained ;  and  this  shows  that  the  privi- 
lege is  worth  little.  At  the  same  time  it  is  apparent  that  this 
precaution  will  often  be  omitted ;  and  the  negligent  will  not 
always  be  the  sufferers,  but  the  creditors  and  heirs.  The 
claim  of  the  widow  furnishes  a  demand  against  the  estate, 
which,  in  a  solvent  one,  falls  upon  the  heirs,  and,  in  one  which 
is  insolvent,  must  diminish  the  proportion  of  the  several  cred- 
itors.^ 

[Eldest  Son's  Double  Portion.] 

Before  the  act  of  1789,  the  eldest  son  was  entitled  to  a 
double  portion.     Prov.  Laws,  104,  105.     The  reasons  which 

1  Perhaps  similar  views  may  have  influenced  legislatures  to  pass  the 
statutes  modifying  or  abolishing  dower  which  have  been  enacted  in 
some  States. 


462  EXTRACTS 

From  Manuscript  Treatise  on  Probate  Law. 

led  to  this  partiality  were  certainly  not  those  given  in  the 
preamble  to  the  act,  — ''  that  real  estates  were  improved  in 
value  by  the  assistance  of  the  children,  the  younger  children 
being  generally  longest  with  their  parents  and  most  servicea- 
ble in  acquiring  the  estate."  It  arose  either  from  a  prejudice 
in  favor  of  the  English  system  ;  or,  which  is  more  probable, 
from  a  reverence  for  the  law  of  Moses  which  confers  on  the 
eldest  son  a  double  portion.     1  Swift,  282.  (a) 

[Exceptions  to  the  Second  General  Rule  of  Descent.] 
The  second  general  rule  of  descent  is,  that  where  there  are 
no  children,  or  representatives  of  children,  of  the  intestate, 
the  inheritance  shall  descend  equally  to  the  next  of  kin,  in 
equal  degree  (1  Swift,  286)  ;  the  children  of  the  brothers 
and  sisters  of  the  intestate  representing  their  parents,  but  no 
further  representation  being  admitted  among  collaterals.  1  P. 
Wms.  25  ;  T.  Raym.  496. 

To  this  general  rule  there  are  exceptions. 

1.  When  any  of  the  children  of  an  intestate  die  before 
twenty-one  years  of  age,  and  unmarried,  such  deceased  child's 
share  shall  descend  among  the  surviving  brothers  and  sisters, 
and  such  as  legally  represent  them. 

2.  But  if  such  child  die  after  having  arrived  to  the  age  of 
twenty-one  years,  unmarried  and  intestate  in  the  lifetime  of 
the  mother,  she  shall  inherit  equally  with  every  brother  and 
sister  and  their  legal  representatives. 

(a)  See  Cotton's  Abstract  of  the  Laws  of  New  England.  Hutch.  Coll. 
Papers,  161. 

"  Inheritances  are  to  descend  naturally  to  the  next  of  the  kin,  according 
to  the  law  of  nature  delivered  by  God.     Numbers,  xxvii.  7-11." 

"  Eldest  son  to  have  a  double  portion,  according  to  the  law  of  God. 
Deut.  xxi.  17;  I.  Chron.  v.  1." 

Mirabeau  on  the  order  of  Cincinnati,  189,  and  n.  4. 

It  seems,  on  the  first  introduction  of  Christianity  in  the  Roman  Empire 
(or,  rather,  on  the  conversion  of  the  Emperor  to  Christianity),  the  laws  of 
Moses  were  received  as  the  divine  original  of  justice  and  right.  4  Gibb. 
342. 

In  Pennsylvania,  the  eldest  son  had  a  double  share.  1683,  first  laws, 
Chalmers,  649. 

5  B.  &  P.  N.  R.  506. 


EXTRACTS  463 


From  Manuscript  Treatise  on  Probate  Law. 


3.  If  any  person  die  intestate  after  marriage,  or  arrival  to 
twenty-one  years  of  age,  without  lawful  issue,  living  the 
father,  the  whole  estate,  except  what  the  intestate's  widow  is 
entitled  to  claim,  shall  go  to  the  father. 

4.  But  if  the  mother  be  living,  and  no  father,  at  the  time  of 
such  decease,  she  shall  be  entitled  to  an  equal  share  with  the 
brothers  and  sisters  of  the  intestate,  and  their  legal  represen- 
tatives. 

In  construing  the  several  clauses  of  the  statute,  which  I 
have  thrown  together  to  compose  this  second  rule  of  descent, 
we  must  be  careful  to  bear  in  mind  that  the  first  part  contains 
the  general  rule,  and  that  the  after-clauses  are  to  be  taken  as 
exceptions  to  it,  and  not  as  independent  rules.^ 

[Criticisms  on  the  above  Exceptions.] 

The  circumstance  of  the  child  being,  at  the  time  of  his 
death,  or  having  been  at  any  other  time,  married  or  unmarried, 
supposing  him  to  die  without  issue,  can  neither  in  nature  nor 
in  reason  have  any  influence  in  determining  the  relative 
claims  of  the  mother,  or  brothers  and  sisters,  to  his  estate. 

The  framers  of  the  act  evidently  supposed  that,  without 
these  clauses,  the  estate  of  the  child  dying  intestate  would  go 
to  the  brothers  and  sisters,  and  not  to  the  mother ;  the  very 
reverse  of  which  is  .the  case ;  and  therefore  the  expression 
should  have  been,  as  it  is  in  the  English  and  Massachusetts 
statutes,  that  every  brother  and  sister  should  inherit  equally 
with  the  mother. 

The  three  last  exceptions  to  the  second  general  rule  of 
descent  were  first  introduced  into  our  law  by  the  act  of 
Feb.  3,  1789.  The  second  was  copied  from  the  Massa- 
chusetts law.  The  two  last  do  not  add  any  thing  to  the 
justice  or  equity  of  our  system ;  make  distinctions  between 
cases  where  it  is  impossible  to  discern  any  difference  ;  occa- 

1  See  Kelsey  v.  Hardy,  1846,  20  N.  H.  479;  Whilten  v.  Davis,  1845, 
18  N.  H.  88;  Bell  v.  Scammon,  1844,  15  N.  H.  381;  M'Afee  v.  Gilmore, 
1828,  4  N.  H.  391 ;  Gen.  Laws,  c.  203,  §§  1-3. 


464  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


sion  a  great  diversity  of  rules,  and  thus  destroy  that  simplicity 
which  is  one  of  the  greatest  excellences  of  any  code  of  laws. 
Blackst.  Tracts,  First  Essay,  55. 

It  would  liave  been  much  better  to  have  followed  the  Eng- 
lish Statute  of  Distributions  ;  to  have  constituted  the  father 
sole  heir  ;  if  he  were  dead,  the  mother,  with  the  brothers  and 
sisters  and  their  representatives  in  infinitum  ;  if  the  mother  were 
also  dead,  the  brothers  and  sisters  alone. ^  If  any  exception 
had  been  admitted,  it  should  have  been  only  that  of  the  por- 
tion of  a  child  in  his  father's  estate,  which  should  go  first  to 
the  brothers  and  sisters,  and  their  representatives,  and  then  to 
the  mother. 

[Preference  of  Brothers  and  Sisteks  over  Grandparents.] 

The  brothers  and  sisters,  and  their  children,  exclude  the 
grandparents.  There  is  no  express  provision  of  this  kind  in 
the  statute.  In  this  respect  it  is  like  the  English  Statute  of 
Distributions.  The  usage  and  decisions  under  that  act  must 
have  great  weight  in  determining  the  sense  of  ours. 

Now  the  invariable  usage  in  England  has  been  to  prefer  the 
brothers  and  sisters,  and  their  children,  to  the  grandparents. 
It  was  so  determined  in  1708,  1748,  and  1754.  3  Atk.  762 ; 
4  Burn,  363,  367  ;  7  G.  Bacon,  462.  It  is,  moreover,  accord- 
ing to  the  better  opinion,  the  true  doctrine  of  the  civil  law. 
1  Dom.  665,  666  ;  Chris,  n.  II.  615  ;  4  Burn,  362.  The  civil- 
ians reason  thus :  It  is  an  evidence  of  the  favor  shown  to 
brothers  and  sisters,  that  they  are  admitted  with  ascendants 
in  a  nearer  degree,  that  is,  with  the  parents ;  when,  therefore, 
their  competitors  for  the  succession  are  more  remote,  we  may 
fairly  presume  that  it  must  have  been  the  intention  of  the  law 
to  place  them  on  more  advantageous  ground  than  that  wliich 
they  occuj)y  as  next  of  kin  ;  and  yet,  if  grandparents  are 
admitted  with  them,  their  share  will  generally  be  reduced,  in- 

^  Such  is  now  the  statute,  with  the  exception  that,  "if  any  person  die 
under  age  and  uumarried,  his  estate,  derived  by  descent  or  devise  from 
his  father  or  mother,  shall  descend  to  his  brothers  and  sisters,  or  their 
legal  representatives,  if  any,  to  the  exclusion  of  the  other  parent."  Geu. 
Laws,  c.  203,  §§1,2. 


EXTRACTS  465 


From  Manuscript  Treatise  on  Probate  Law. 


asmuch  as  the  number  of  grandparents  are  double  to  that  of 
the  parents.  This  reasoning  is  equally  applicable  to  our 
statute  as  to  the  novel  of  Justinian.  I  do  not  lay  much  stress 
on  the  peculiar  expressions  in  our  act.  Even  if  it  were  said 
that  the  brothers  and  sisters  should  inherit  equally  with  the 
mother,  it  might  fairly  be  inferred  that,  if  there  was  no 
mother,  they  alone  should  inherit.  Both  equity  and  utility 
incline  in  favor  of  the  brothers  and  sisters.  What  has  already 
been  observed  in  the  case  of  children  and  their  mother  is  still 
more  applicable  to  the  present  case,  (a) 

The  estate  of  a  brother  or  sister  cannot  go  in  a  course  of 
descent  from  the  brothers  and  sisters.  If  the  parents,  or 
either  of  them,  succeed  in  the  first  place,  the  brothers  and 
sisters  will  eventually  succeed  as  their  heirs.  Half  brothers 
and  sisters  may  indeed  be  introduced  by  second  marriages  of 
the  parents.  But  if  the  grandparents  should  inherit  with 
brothers  and  sisters,  the  uncles  and  aunts  would,  in  a  course  of 
descent,  take  their  shares  in  exclusion  of  the  brothers  and 
sisters  of  the  intestate. 

[No  Boundary  to  Inheritable  Degrees  of  Kindred.] 

There  seems  to  be  no  boundary  fixed  to  the  degrees  of 
kindred  within  which  a  person  must  claim  to  succeed  as  the 
heir  of  an  intestate.  Where  consanguinity  in  general,  and 
not  proximity,  is  the  object  of  any  law,  it  is  usually  limited 
within  certain  degrees  (Blackst.  Tracts,  1  Essay,  17,  23)  ; 
such  as  the  case  of  marriages,  challenges  of  judges,  jurors, 
and  witnesses.  It  would  be  too  uncertain  without,  since  all 
mankind  are  related.  But  where  proximity  comes  only  to 
be  considered,  such  boundary  is  not  equally  necessary,  and 
consequently  is  often  omitted.  For,  though  all  the  world 
may  be  related  to  an  intestate,  for  example,  they  are  not 
all  his  next  of  kin,  and  such  the  person  claiming  to  be 
heir  must  prove  himself.     It  has  seldom  happened  in  Eng- 

(a)  Professor  Christiau  is  of  opinion  that  no  good  reason  can  be  given 
for  the  doctrine  that  brothers  and  sisters  exclude  grandparents.  II.  615; 
2  Blackst.  520. 

30 


466  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


laud  that  kinsmen  beyond  the  tenth,  or  even  the  seventh, 
degree  have  succeeded  to  the  estate  of  a  person  dying  intes- 
tate. 

There  must,  in  tlie  nature  of  tilings,  be  a  boundary  to  the 
evidence  which  proves  pedigree  or  consanguinity.  1  Swift, 
292,  293.^  In  this  State  it  is  apprehended  there  are  many 
who  could  not,  and  some  who  would  not  choose  to,  trace  out 
their  ancestors  to  the  seventh  degree.  Relations  in  those 
remote  degrees  would  be  found  among  foreign  nations,  and 
so  excluded  as  aliens,  unless  their  right  of  succession  were 
saved  by  treaty.     1  Dom.  55. 

[ExECUTOii  de  son  tort.     Remedy  by  Ckeditors,  &c.] 

There  can  be  no  doubt  in  this  State,  however  it  may  be  in 
England,  that  administrators  are  bound  to  account,  not  only 
for  what  came  to  their  hands  since  administration  granted, 
but  also  what  had  come  to  their  hands  before  ;  and,  therefore, 
creditors  cannot  be  injured  by  the  doctrine  that  administration 
purges  the  wrong .^ 

...  It  is  conceived  .  .  .  that  if  an  executor  de  son  tort  take 
administration,  he  may  plead  insolvency,  or  any  other  plea 
which  any  other  administrator  may  plead ;  ^  and  that  he  is 
liable  to  the  same  extent  as  other  administrators,  and  no 
farther. 

If  the  defendant  plead  ne  imque  executor,  and  it  is  found 
by  the  jury  that  he  has  administered  any  goods  of  the 
deceased,  however  inconsiderable  in  value,  he  is  then  sub- 
jected, as  a  punishment  for  his  false  plea,  to  the  payment  of 
the  plaintiff's  whole  debt.     2  Bosw.  61  ;  2  Went.  Off.  Ex.  179  ; 

^  For  cases  where  the  evidence  oifered  was  held  insullicieiit,  see  Morrill 
V.  Otis,  1841,  12  N.  H.  4G6 ;  Emerson  v.  White,  1854,  29  N.  II.  482. 

2  See  Richardson,  C.  J.,  in  Clements  v.  Swain,  1822,  2  N.  H.  475, 
476;  Eastman,  J.,  in  E7nery  v.  Berry,  1854,  28  N.  H.  473,  484. 

8  See  ShiUaber  \ .  Wyman,  1818,  15  Mass.  322;  Olmsted  y.  Clark,  18(51, 
30  Conn.  108  (but  see  Green  v.  Dewit,  1790,  1  Root,  183);  Tweedy  v. 
Bennett,  1863,  31  Conn.  276;  Sanford,  J.,  in  Bennett  v.  Ives,  1862, 
30  Conn.  329,  335. 


EXTRACTS  467 


JVora  Manuscript  Treatise  on  Probate  Law. 


3  G.  Bacon,  24.     But  it  is  said  that  equity  will  grant  relief  in 
cases  of  extreme  hardship.     Com.  Ch.  398.  (a) 

This  notion  of  punishing  a  man  for  false  pleading  is  a  good 
deal  antiquated,  and,  in  this  particular  case,  extremely  severe.^ 
How  can  the  defendant  certainly  know  that  the  acts  done 
will  be  deemed,  in  law,  sufficient  to  constitute  an  executor  de 
son  tort  ?  (^)  This  is  always  a  question  of  law,  and  sometimes 
a  difficult  one. 

It  seems  pretty  clear  that  if  the  defendant  plead  plene 
administravit  in  England,  and  the  jury  find  against  him,  they 
will  at  the  same  time  find  the  value  of  the  goods  unadmin- 
istered ;  in  this  case,  the  executor  de  son  tort  will  only  be 
charged  as  the  rightful  administrator  is,  to  the  value  of  the 
assets  so  found  in  his  hands,  (c)  3  G.  Bacon,  25 ;  4  Burn, 
198;  2  Wooddes.  469,  n.  a;  Com.  [Dig.]  Adm'r,  C.  3  ;  1 
Went.  Off.  Ex.  180. 

It  may  admit  of  some  doubt  how  far  the  act  of  Feb.  3, 
1789,  has  softened  the  rigor  of  the  common  law.  It  can 
hardly  be  supposed  that  it  was  the  intention  of  the  makers 
of  this  act  to  increase  that  rigor ;  and,  therefore,  it  must 
be  applicable  only  to  the  case  of  ne  unque  executor  pleaded 
and  found  against  the  defendant.  Nor  can  it  be  confined 
to  those  cases,  as  the  words  seem  to  import,  where  an  ex- 

(a)  To  secure  the  effects  of  the  deceased  from  embezzlement,  every 
person  who  intermeddles  irregularly,  or,  as  it  is  termed  in  the  Scotch  law, 
is  guilty  of  vitious  intromission,  is  subjected  to  the  whole  debts  of  the 
deceased  without  hmitation  or  restriction.    2  Kames,  Eq.  327. 

As  to  reUef  in  equity,  see  1  Eq.  Cas.  Abr.  237. 

(6)  It  probably  arose  in  this  way.  Executors  have  it  in  their  power  to 
prefer  creditors  in  certain  cases.  He  who  first  obtains  judgment  shall  be 
preferred.  To  delay  a  creditor  he  did  not  like,  the  executor  might  plead 
a  false  plea.  The  doctrine  alluded  to  was  probably  introduced  to  check 
such  practices.     As  applied  to  such  cases  it  was  not  too  severe. 

Toller,  225,  226. 

(c)   And  yet  this  is  a  false  plea. 

1  In  Pillsbiiry  v.  Hubbard,  1839,  10  N.  H.  224,  235,  Parker,  C.  J., 
said,  "  We  have  no  practice  here,  charging  an  executor  or  administrator 
with  costs  on  account  of  false  pleading  merely.  ..." 


468  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


ecutor  de  son  tort  afterwards  takes  out  letters  of  admin- 
istration. It  has  not  been  usual  to  sue  such  persons,  as 
executors  of  their  own  wrong,  or  to  charge  them  with  any 
thing  more  than  the  value  of  the  estate  which  may  have,  at 
any  time,  come  to  their  hands. 

The  most  natural  construction  is  that  it  was  intended  to 
soften  the  rigor  of  the  common  law  in  those  cases  which  have 
always  been  considered  as  hard  ones ;  where  the  smallest 
intermeddling  with  the  estate  of  a  person  deceased,  the  milk- 
ing of  cows,  taking  a  dog,  a  bedstead,  a  bible,  have  subjected 
the  person  charged,  and  pleading  ne  unque  executor,  with 
the  whole  debt  of  the  creditor  suing.  Kames,  L.  Tr.  52,  n. ; 
1  Swift,  433  ;  3  G.  Bacon,  24  ;  Chris.  N.  II.  611.  And  this 
construction  is  the  more  reasonable,  as  we  are  destitute  of 
courts  of  equity  to  mitigate  the  extreme  rigor  of  the  law. 
Com.  Ch.  3  g.  8.  It  is  particularly  necessary  in  this  State, 
as  an  executor  de  son  tort  cannot,  as  he  may  in  England,  plead 
plene  administravit. 

To  give  effect  to  this  clause  in  the  sense  we  understand  it, 
the  jury,  on  the  plea  of  ne  unque  executor,  must  find  the  value 
of  the  goods  administered,  (a)  ^ 

[Whether    an    Executor   de  son  tori   ma.y    plead  plene  administravit, 

EITHER   GENERALLY    OR    SPECIALLY.] 

By  our  law,  this  plea  of  plene  administravit  is  not  allowed. 
Where  the  assets  are  sufficient,  every  just  debt  must  be  paid. 
And  where  thay  are  insufficient,  the  insolvent  course  of  ad- 
ministration must  be  pursued,  and  this  an  executor  de  son  tort 
cannot  pursue.  But  he  may,  perhaps,  plead,  by  way  of  analogy 
to  the  English  practice,  a  special  plene  administravit^  that  is, 
the  payment  of  funeral  expenses  and  debts  entitled  to  pri- 
ority ;  because  the  rightful  executor  may  so  plead.  (6)  ^ 

(a)  On  the  subject  of  executor  de  son  tort,  see  4  East,  441. 

(b)  It  is  not  perfectly  clear  that  a  rightful  executof  can  plead  even  this 


^  The  construction  of  the  statute  of  1789,  here  suggested  by  the  author, 
does  not  seem  to  have  occurred  to  the  courts.  See  Bellows  v.  Goodall, 
1855,  32  N.  H.  97,  99;  Neal  v.  Baker,  1822,  2  N.  H.  477. 

2  Compare  Richardson,  C.  J.,  in  Neal  v.  Baker,  1822,  2  N.  H.  477, 


EXTRACTS  469 


From  Manuscript  Treatise  on  Probate  Law. 


According  to  the  English  practice,  under  plene  adminis- 
travit,  the  executor  de  son  tort  may  give  in  evidence  the 
delivery  of  the  goods  of  the  deceased  over  to  the  rightful 
executor  or  administrator,  before  action  brought  by  the  cred- 
itor or  legatee,  but  not  after.  2  H.  Bl.  25 ;  3  T.  R.  587  ; 
2  T.  R.  97  ;  Chris.  N.  II.  611.  In  this  State,  he  may  plead 
this  fact  specially  in  bar.^ 

[Special  plene  administravit.'] 

If  the  charges  of  administration  as  here  explained  \_i.  e.,  as 
including  funeral  expenses  and  the  widow's  allowance,  as  well 
as  administrator's  expenses]  exhaust  the  estate,  the  executor 
or  administrator  may  settle  his  account ;  the  administration  is 
completed ;  and  he  may  plead  this  decree  or  settlement,  as 
a  special  plene  administravit,  to  any  action  brought  against 
him  in  his  representative  capacity.^  [See]  Mass.  Laws, 
8vo,  86. 

special  ple7ie  administravit  in  the  same  manner  as  in  England.  How  can 
the  jury  judge  of  the  quantum  of  assets,  and  that  there  are  not  other  debts 
in  the  same  degree  ?  After  the  assets  are  found  in  the  probate  court,  and 
settled  in  the  administration  account,  and  exhausted,  these  facts  may  be  set 
forth  in  the  plea. 

478.  And  see  Sanford,  J.,  in  Bennett  v.  Ives,  1862,  30  Conn.  329, 
335. 

Whether  the  defence  that  the  executor  de  son  tort  has  already  paid 
judgments  to  the  full  limit  of  his  statutory  liability  may  be  set  up  under 
a  general  plea  of  jylene  administravit,  qucere.      See  32  N.  H.  100. 

1  See  Richardson,  C.  J.,  in  2  N.  H.  477. 

2  "  If  the  estate  of  any  person  deceased,  after  deducting  the  allowance 
made  to  the  widow,  shall  be  expended  in  defraying  the  expenses  of  the 
last  sickness  and  funeral  of  the  deceased,  and  expenses  of  administration, 
the  administrator,  on  settlement  of  his  account  and  due  notice  to  the  heirs 
and  others  interested  in  the  estate,  shall  be  wholly  discharged,  by  decree 
of  the  judge,  from  all  claims  of  the  creditors  against  the  estate,  without 
other  proceedings."  Gen.  Laws,  c.  199,  §  2.5;  originally  enacted  in  1841, 
excepting  the  clause  relative  to  notice. 

If  the  author's  view  is  correct,  the  enactment  of  this  statute  was 
uncalled  for.  The  allowance  of  the  administrator's  final  account  (showing 
the  estate  exhausted  by  these  items)  would,  if  made  on  proper  petition 


470  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


[Genehal  Plea  of  plene  administravit  not  good  in  New  Hampshire.] 
A  general  plene  administravit,  (a)  it  is  conceived,  would 
not  be  good  in  this  State.  The  plea  ought  to  state  how  he 
has  administered,  and  show  that  there  is  nothing  for  demands 
of  the  kind  sued.  The  court  can  then  see  and  judge  whether 
the  administration  is  legal,  and  the  adverse  party  has  the 
benefit  of  knowing  precisely  what  it  is  he  is  to  defend 
against.  (6)  2  Coll.  Jurid.  460  ;  1  Salk.  296  ;  1  Swift,  428, 
429  ;  Kirby,  246. 

[In  an  Action  against  an  Administhatkix,  long  pending  in  the 
Superior  Court,  and  finally  compromised  in  1808,  one  of  the 
Defendant's  Pleas  was  ''plene  administravit  in  the  English  Gen- 
eral Form."  It  does  not  appear  that  there  was  an  Actual 
Decision  as  to  the  "Validity  of  this  Plea;  but  in  the  Manu- 
script Digest  it  is  said,  that  the  Court  "intimated"  that  it 
WAS  "BAD."  The  following  Note  was  appended  by  Judge 
Smith  to  his  Manuscript  Report  of  the  Case.] 

The  general  plea  ol  plene  administravit,  in  this  State,  is  bad. 
It  is  not  a  denial  of  assets  to  satisfy  debts  in  general.  It 
admits  that  there  have  been  assets,  but  says,  "  I  paid  them 
away  to  other  creditors  before  you  sued  ;  "  and  this,  by  the 
English  law,  is,  in  many  cases,  a  complete  answer  to  the  plain- 
tiff.    But   it  is  no  answer  by   our  law  ;   because,   with   the 

(a)  It  is  believed  that  courts  of  law  in  England  never  admit  plene 
administravit  to  be  pleaded  where  creditors  are  entitled  to  be  paid  pari 
passu.     Here  even  privileged  creditors  are  so  entitled. 

(b)  It  would  be  absurd  to  authorize  a  plea  which  the  court  could  not 
try.  Now  our  courts  of  common  law  cannot  try  either  the  debts  and 
charges  on  the  funds,  or  the  amount  of  funds.  If  plene  administravit  be 
a  good  plea,  it  can  only  be  proved  by  the  proceedings  in  the  probate  court; 
therefore  those  proceedings  should  be  pleaded. 

and  due  notice,  operate,  ipso  facto,  as  a  discharge  of  the  administrator;  and 
no  special  decree  of  discharge  would  be  nece.ssary. 

As  to  impeaching,  on  the  ground  of  fraud,  a  discharge  granted  under 
the  statute  of  1841,  see  Tebbetts  v.  Tilton,  18-55,  31  N.  H.  273. 

See  further,  as  to  defences  in  the  nature  of  a  special  plene  administravit, 
Parcher  v.  Bussell,  1853,  11  Cush.  107  ;  Longfellow  v.  Patrick,  1845, 
25  Me.  18;  Boyden  v.  Ward,  1866,  38  Vt.  628. 


EXTRACTS  471 


From  Manuscript  Treatise  on  Probate  Law. 


exception  of  a  few  privileged  debts,  all  the  creditors  are  to 
fare  alike.  An  administrator  is  not  permitted  to  say,  "  I  had 
assets,  but  I  have  administered  them  to  others."  The  plaintiff 
had  a  right  to  his  share,  and  the  plea  admits  there  was  some- 
thing to  share  among  the  creditors.  If  we  admit  this  plea, 
we  must  admit  the  consequences,  and  the  jury  must  settle 
administration  accounts  ;  what  estate  the  administrator  real- 
ized, or  might  have  realized  ;  waste  committed,  positive  and 
implied ;  the  administration  charges ;  debts  paid.  In  Eng- 
land these  things  can  be  tried  nowhere  else  but  at  law.  They 
cannot  be  tried  in  the  spiritual  court.  But  the  law  is  not  so 
here.  The  probate  court  try  these  questions,  and  they  alone 
can  try  them.  Administering  in  the  insolvent  course  is  the 
only  way  in  which  the  assets  in  general  can  be  apportioned ; 
and,  when  he  does  so  administer,  the  creditors  cannot  proceed 
at  law.  If  the  administrator  does  not  administer  in  the  in- 
solvent course,  he  must  pay  all  the  creditors  in  full ;  for  a 
court  of  law  cannot  apportion.  If  he  has  administered  in 
that  course,  he  must  plead  it ;  for  this  is  the  only  way  in 
which  he  can  protect  himself.  And  he  must  plead  it  in  ex- 
press terms  ;  it  will  not  be  presumed.  In  this  plea,  defendant 
says  she  has  administered  the  estate  according  to  law.  But 
there  are  two  modes,  one  as  legal  as  the  other.  Which  has 
she  pursued  ?  ^ 

[Whether  Administration  on  Non-resident's  Estate,  granted 
in  the  wrong  county,  is  void.] 

If  the  deceased  was  not,  at  the  time  of  his  death,  an  in- 
habitant of  this  State,  administration  shall  be  granted  by  the 

^  A  general  plea  of  plene  administravit  is  not  good  where  the  estate  has 
not  been  represented  insolvent.  Olcott  v.  Graham,  1787,  Kirby,  246;  and 
see  Phelps  v.  Swan,  1788,  Kirby,  428,  430;  Shaw,  C.  J.,  in  Cushing  v. 
Field,  1845,  9  Met.  180,  181;  Richardson,  C.  J.,  in  Neal  v.  Baker, 
1822,  2  N.  H.  477,  478.  Such  a  plea  was  not  objected  to  in  Tehbetts  v. 
Tilton,  1855,  31  N.  H.  273,  274;  but  the  real  controversy  there  seems  to 
have  been  tried  upon  the  issues  joined  on  the  replications  to  another  plea. 

Plene  administravit  is  not  a  good  plea  to  an  action  of  debt  on  an  admin- 
istration bond.     Judge  of  Probate  v.  Lane,  1871,  50  N.  H.  556. 

As  to  general  and  special  plene  administracit,  see  also  a  subsequent 
extract. 


472  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


judge  of  the  county  where  the  greatest  part  of  the  estate, 
real  and  personal,  shall  happen  to  be.  Laws,  ed.  1797, 
247. (a)  1 

It  is  conceived  that  administration  granted  in  a  county 
where  the  deceased  had  estate,  though  less  than  in  another 
county,  would,  nevertheless,  be  valid  ;  for,  till  the  administra- 
tion is  completed,  it  cannot  be  ascertained  how  much  of  the 
deceased's  estate  was  in  each  county.  (6) 

It  is  also  conceived  that  administration  granted  in  a  county 
where  the  deceased  had  no  estate  would  not  be  void,  but 
voidable  only. 

One  administration  is  sufficient  for  all  the  property  within 
this  State. 

[When  is  a  Grant  of  Administration  absolutely  void?] 

It  is  often  said  in  tlie  books  that  administration  is  void, 
when  the  meaning  is  only  that  it  is  voidable.     1  Salk.  38. 

Neither  letters  testamentary  nor  letters  of  administration 
are  absolutely  void,  except  when  the  testator  or  intestate 
is  alive,  or  the  letters  are  granted  by  an  incompetent  author- 
ity.    3  T.  R.  129.  (c) 

(a)  How  is  that  fact  to  be  ascertained  before  administration  conapleted? 
It  is  conceived  the  fact  being  found  otherwise  would  not  affect  the  juris- 
diction of  the  judge,  or  the  grant  otherwise  duly  made. 

J.  S.  1841.     See  post. 

(Jb)   See  Temporary  Act,  folio  ed.  72. 

(c)  Perhaps  in  this  State  a  grant  of  administration  by  a  judge  in  a 
county  other  than  that  in  which  the  deceased  dwelt,  and  especially  if 
administration  was  before  granted  in  the  proper  county;  or,  in  the  case  of 
non-inhabitants,  a  grant  in  one  county  after  a  previous  grant  in  another, 
where  there  was  superior  or  equal  right;  the  latter  would  be  void.*  But 
the  first  grant  of  administration  in  this  State,  it  is  conceived,  will,  like 
that  of  the  metropolitan,  be  voidable  only.     Our  judges  have  jurisdiction, 


1  By  the  present  statute,  administration  may  be  granted  by  the  judge  of 
any  county  in  which  the  non-resident  had  estate.     Gen.  Laws,  c.  189,  §  6. 

*  The  remainder  of  this  note  is  in  a  later  handwriting. 


EXTRACTS  473 


From  Manuscript  Treatise  on  Probate  Law. 


[Repeal  of  ex  parte  Probate  Decrees.] 

Where  any  thing  is  done  in  the  Probate  Court  ex  parte,  or 
on  the  suggestion  of  a  party,  without  the  adverse  party  hav- 

like  the   metropolitan,  through  the   State  or  Province.     In   this  respect 
they  do  not  compare  with  the  English  ordinary  or  bishop.* 

*  I.  A  grant  of  administration  upon  the  estate  of  a  living  person,  under  an  erroneous 
belief  of  his  death,  was  held  absolutely  void  in  Moare  v.  Smith,  1858,  11  Rich.  (S.  C)  L. 
569,  and  in  Jochumsen  v.  Stiffolk  Savings  Bank,  1861,  3  Allen,  87;  nnd  such  was 
assumed  to  be  the  law  in  McNeil  v.  Burnam,  Hillsborough,  December  Term,  1815.  See 
also  Duncan  and  Hooper  v.  Stewart,  1854,  25  Ala.  408,  where  it  seems  to  have  been  pos- 
sible to  dispose  of  the  case  without  deciding  this  point.  The  absolute  nullity  of  such  a 
grant  has  repeatedly  been  asserted  in  the  rficto  of  j udges ;  see  especially  Duller,  J.,  in 
Allen  V.  Dumlas,  1789,  3  T.  R.  125,  130;  Marshall,  C  J.,  in  Griffith  v.  Fraziei;  1814, 
8  Cranch,  9,  23;  Bell,  C.  J.,  in  Morgan  v.  Dodge,  1862,  44  N.  H.  255,  259. 

The  contrary  was  held  in  Roderigas  v.  East  River  Savings  Institution,  1875,  63  N.  Y. 
460;  criticised  in  10  Am.  Law  Rev.  787;  and  in  15  Am.  Law  Reg.  n.  s.  212. 

Since  the  decision  in  3  Allen,  87,  a  statute  has  been  passed  in  Massachusetts,  whereby 
a  confirmation  can  be  had  of  payments  made  to,  or  acts  done  by,  a  person  acting  as  execu- 
tor or  administrator,  whose  appointment  "shall  be  vacated  or  declared  void  by  reason  of 
any  irregularity  or  want  of  jurisdiction  or  authority  of  the  court  making  the  same." 
Mass.  Stat,  of  1873,  c.  253. 

IL  Grants  of  administration,  or  of  letters  testamentary,  on  the  estate  of  a  deceased 
resident  of  the  State  (or  the  probate  of  such  a  person's  will),  in  a  county  other  than  that 
in  which  he  dwelt,  are,  according  to  some  authorities,  absolutely  void.  Cutts  v.  Haskins, 
1813,  9  Mass.  543;  Iloiyoke  v.  Haskins,  1827,  5  Pick.  20  (and  see  9  Pick.  259);  Bolton  v. 
Jacks,  1868,  6  Rob.  (N.  Y.)  166  ;  Lessee  of  Griffith  v.  Wright,  1855,  18  Ga.  173  (and  see 
Goodtitle  v.  Roe,  1856,  20  Ga.  135);  Succession  of  Williamson,  1848,  3  La.  Ann.  261; 
Miltenberger  v.  A'nox,  1869,  21  La.  Ann.  399;  Collins  v.  Turner,  1817,  Tayl.  (N.  C.)541 
(sometimes  cited  as  2  Tayl.);  Pinkerton  v.  Walker,  1817,  3  Hayw.  (Tenn.)  220,  222  (but 
see  Johnson  v.  dailies,  1860,  1  Coldw.  (Tenn.)  288);  Wilson  v.  Frazier,  1840,  2  Humph. 
(Tenn.)  30,  31.  See  also  Johnson  v.  Cm-penning,  1845,  4  Ired.  (N.C.)  Eq.  216;  Wise,  J., 
in  McChord  v.  Fisher's  Heirs,  1852,  13  B.  Mon.  193;  Bell,  C.  J.,  in  Morgan  v. 
Dodge,  1862,  44  N.  H.  255,  259.  See  also  Ohnstead's  Appeal,  1875,  43  Conn.  110;  Foster, 
J.,  118,  120-123  (but  see  Carpenter,  J.,  125,  and  Holcmnb  v.  Phelps,  1844,  16  Conn. 
127). 

Other  authorities  hold  that  such  grants  are  not  absolute  nullities,  and  cannot  be  col- 
laterally impeached.  Raborg's  Adm'x  v.  Hammond's  Adm'r,  1827,  2  Har.  &  G.  (Md.)  42; 
Burnley's  Representatives  v.  Z>MA;e,  1843,  2  Rob.  (Va.)  102  (see,  however,  Ex  parte 
Barker,  1830,  2  Leigh  (Va.),  719);  Irwin  v.Scriber,  1861,  18  Cal.  499  (but  see  Burnett, 
J.,  in  Beckett  v.  Selover,  1857,  7  Cal.  215,  236,  237);  Burdetl  v.  Silsbee,  1855,  15  Tex. 
604  (but  see  Fisk  v.  Norvel,  1852,  9  Tex.  13,  and  Withers  v.  Patterson,  1864,  27  Tex. 
491);  Mtyrrell\.  Dennison,  1859,  8  Abb.  (N.  Y.)  Pr.  401;  s.  C.  nam.  Monellv.  Dennison, 
17  How  Pr.  422.  See  also  Brown,  J.,  in  Bolton  v.  Brewster,  1860,  32  Barb.  389,  394, 
395;  REnFiEi.n,  C.  J.,  in  Abbott  v.  Coburn,  1856,  28  Vt.  663,  667,  and  in  Driggs  v. 
Abbott,  1854,  27  Vt.  580,  581.  "  Where  a  probate  court  has,  upon  a  petition  asserting  the 
essential  jurisdictional  facts,  and  after  notice  to  the  parties  in  interest,  given  in  the  man- 
ner prescribed  by  law,  granted  letters  testamentary  or  of  administration,  the  proceedings 
cannot  be  avoided  collaterally,  in  the  majority  of  the  States,  by  proof  that  the  deceased 
did  not  die  within  the  jurisdiction  of  the  court."     Freeman  on  Void  Judicial  Sales,  §  4. 


474  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


ing  had  an  opportunity  of  being  heard,  it  seems  unreasonjable 
that  a  decree  made  under  such  circumstances  should  be  irre- 
peahible.  The  right  of  appeal  affords  no  adequate  relief;  for 
the  decree  may  remain  unknown  till  the  time  for  appealing  is 
elapsed.  Indeed,  the  remedy  by  appeal  is,  in  its  nature,  cal- 
culated only  to  redress  an  erroneous  judgment  of  an  inferior 

And  see  the  able  opinion  of  Hogeboom,  J.,  in  Bumsteadv.  Read,  1859,  31  Barb.  661, 
where  it  was  decided  that,  if  a  petition  to  the  surrogate  for  probate  and  letters  testamen- 
tary avers  the  residence  of  the  testator  within  the  county,  and  interested  parties  who 
are  notified  con.sent  to  the  grant  of  the  petition,  such  parties  cannot  afterwards  impeach 
the  probate  on  the  ground  that  the  testator  in  fact  resided  in  another  county. 

The  rule  in  Massachusetts  has  been  changed  by  statute,  so  that  jurisdiction  assumed 
by  the  judge  of  probate,  so  far  as  it  depends  on  the  place  of  residence  of  a  person,  if  un- 
appeaied  from,  shall  tiot  be  afterwards  contested,  unless  the  want  of  jurisdiction  appears 
on  the  same  record.  Gen.  Stat,  of  Mass.  c.  117,  §  4.  For  the  construction  of  a  similar 
statute  in  Maine,  see  Record  v.  Hmmrd,  1870,  58  Me.  225,  where  Walton,  J.,  states 
reasons  in  favor  of  this  legislation,  58  Me.  228,  229. 

III.  A  grant  of  administration  on  the  estate  of  one  who  was  not  a  resident  of  the  State, 
and  had  no  effects  within  it  to  be  administered,  was  held  void  in  Crosby  v.  Lenvitt,  1862, 
4  Allen,  410;  J-Jmbry  v.  Milbr,  1818,1  A.  K.  Marsh.  300;  Thurnb  v.  Gresham,  1859, 
2  Met.  (Ky.)  306;  and,  semble,  Christy  v.  Vest,  1873,  36  Iowa,  285,  287  (but  see  Roth- 
KOCK,  J.,  in  Murphy  v.  Creir/htoji,  1876,  45  Iowa,  179,  182). 

Contra.  Andrews  v.  Avery,  1858,  14  Graft.  229.  See  also  Fisher  v.  Bassett,  1837 
9  Leigh  (Va.),  119,  where  it  was  heU  that  a  grant  of  administration  on  the  estate  of  a  non- 
resident in  a  county  where  he  had  no  estate,  his  only  assets  in  Virginia  consisting  of 
claims  against  residents  of  another  county,  was  not  void. 

IV.  The  appointment  of  an  administrator  de  bonis  non,  in  a  county  other  than  that 
where  the  original  administration  was  granted,  has  been  held  void.  Parding  v.  Speed's 
Ex'r,  1827,5  T.  B.  Mon.  580;  People  v.  White,  1849,  11  111.  341;  and  see  Unknown 
Heirs  of  Langworihy  v.  Baker,  1860,  23  111.  484,  490 ;  Johnson  v.  Corpenning,  1845,  4 
Ired.  (N.  C.)  Eq.  216. 

Contra.     Clapp  v.  Beardsley,  1828,  1  Vt.  151. 

V.  The  Mass.  statute  establishing  county  courts  of  probate  prohibited  the  grant  of 
original  administration  after  twenty  years  from  ttie  death  of  the  intestate.     In  Wales  v. 

Willard,  1806,  2  Mass.  120,  a  grant  after  that  period  was  /ieWvoid. 

But  in  Tennessee,  where  the  statute  provided  that  letters  testamentary  granted  after 
the  lapse  of  twenty  years  from  the  testator's  death,  should  be  "utterly  void  and  of  no 
effect,"  it  was  decided  that  probate  and  letters,  though  granted  more  than  thirty  years 
after  death,  could  not  be  collaterally  impeached.  Townsendv.  Toimisend,  1867,  4  Coldw. 
70.  And  in  Pennsylvania,  where  the  statute  prohibited  the  register  (unless  ordered  by  a 
register's  court)  from  granting  original  letters  of  administration  on  estates  of  persons 
who  have  been  dead  twenty -one  years,  it  is  said  that  such  letters  are  not  void.  Foster  v. 
Commonioeallh,  1860,  35  Pa.  St.  148. 

See  further,  as  to  such  limitations,  1  Williams,  Ex.,  6th  Am.  ed.  519,  n.  /. 

VI.  In  a  suit  on  the  administration-bond,  the  administrator  and  his  sureties  are 
estopped  to  deny  the  jurisdictiofi  of  the  probate  court  to  grant  administration.  People  v. 
Falconer,  1848,  2  Sandf.  (N.  Y.)  Superior  Court,  81;  Field  v.  Van  Colt,  1874,  15  Abb. 
N.  Y.  Pr.  N.  s.  349;  s.  c.  5  Daly  (N.  Y.  C.  P.),  308;  Foster  v.  Commonwealth,  1860,  35  Pa. 
St.  148.  The  bond  is  good  at  common  law.  McChord  v.  Fisher's  Heirs,  1852,  13  B. 
Mon.  193;  Pntchett  v.  People,  1844,  1  Gilm.  (111.)  525. 


EXTRACTS  475 


From  Manuscript  Treatise  on  Probate  Law. 


court,  where  there  were  parties  before  the  court.  It  is  for 
this  reason  that  a  probate  in  common  form,  letters  testamen- 
tary, and  of  administration,  in  many  cases  are  repealable.^ 

[Remedies  of  Heir  where  Estate  incorrectly  represented 
Insolvent.] 

Though  it  is  in  the  power  of  the  executor  or  administrator 
to  defeat  the  title  and  enjoyment  of  the  devisee  or  heir,  yet,  if 
it  happen  that  the  real  estate  is  not  necessary  for  the  payment 
of  debts,  the  heir  or  devisee,  as  the  case  may  be,  will  be  en- 
titled to  the  rents  or  proceeds  of  sale,  and  it  will  not  be  blended 
with  the  personal  estate. ^ 

And  if  it  can  be  made  to  appear  that  the  representative  has 
acted  maid  fide  in  making  the  representation  of  insolvency,  or 
in  applying  for  license  to  sell  real  estate,  there  can  be  little 
doubt  that  an  action  would  lie  for  the  heir  or  devisee  to  be 
compensated  in  damages  for  injury  sustained  by  the  proceed- 
ings in  administering  the  real  estate. 

[Who  may  be  Appraisers.] 
With  us,  creditors  and  next  of  kin  to  the  deceased  are  con- 
sidered as  unsuitable  persons  for  the  office  of  appraiser.  But 
there  does  not  seem  to  be  any  good  reason  for  this  opinion. 
The  interest  of  the  persons  so  circumstanced  would  lead  them 
to  make  diligent  search  for  the  estate,  and  to  appraise  it  at 
least  as  high  as  the  worth :  if  at  more,  the  representative  is 
not  injured. 

[Inventory.     Whether  Administrator  can   take   Advantage   of 
AN  Appraisal  at  too  low  a  Valuation.] 

If  the  value  set  down  in  the  inventory  be  too  high,  the 
representative  may,  by  license,  sell,  and  then  he  sh-all  account 
only  for  the  product ;  or  he  may,  in  some  cases,  discharge 
himself,  by  producing  on  his  account  the  estate  itself.  Laws, 
247,  255  ;  4  Burn,  265. 

^  See  Symmes  v.  Libhey,  reported  ante,  137. 

2  As  to  the  respective  rights  of  the  administrator  and  the  heir,  where 
a  solvent  estate  is  settled  in  the  insolvent  course,  see  Carter  v.  Jackson, 
1876,  56  N.  H.  364;  and  cases  there  collected,  368-374. 


476  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


As  he  Cannot  be  prejudiced  by  too  high  a  valuation,  so  he 
ought  to  derive  no  advantage  from  one  too  low.  He  is  a 
trustee,  and  ought  to  account  for  the  true  value,  of  which  the 
appraisement  is  only  primd  facie  evidence.  This  is  the  rule  in 
the  English  courts  of  equity,  and  it  is  a  reasonable  one. 

Independent  of  the  circumstance  that  the  representative  is 
not  bound  by  the  appraisement  if  he  deems  it  too  high, — 
which,  on  the  score  of  reciprocity,  should  leave  the  other  party 
at  liberty  to  object  if  they  deem  it  too  low,  —  it  would  be 
particularly  injurious,  in  this  State,  to  consider  it  as  con- 
clusive on  the  creditors  and  heirs  ;  inasmuch  as  the  appraisers 
are  usually  nominated  by  the  representative,  though  appointed 
by  the  judge,  and  the  business  is  generally  transacted  in  the 
absence  of  the  party  concerned  in  interest. 

Besides,  it  may  happen  that  there  be  fraud  and  collusion 
between  the  appraisers  and  the  representative.     Toll.  196. 

But,  where  nothing  of  this  kind  can  be  fairly  imputed  to  the 
persons  concerned  in  making  the  inventory,  creditors  and  heirs 
may  be  aggrieved  by  the  appraisement.  It  may  have  been 
originally  set  too  low,  by  mistake  ;  or,  which  is  a  case  that 
will  often  happen,  the  article  may  rise  or  fall  in  the  market. 
Toll.  340.  Now  the  representative  can  protect  himself  from 
loss  in  the  case  of  a  fall.  Why  should  he  derive  any  advantage 
from  the  rise  ? 

Against  this  doctrine  may,  perhaps,  be  urged,  the  clause  of 
the  statute  of  Feb.  3,  1789  (p.  247),  that  the  administrator 
shall  account  for  the  personal  estate  as  appraised,  unless  a  sale 
is  ordered.  The  meaning  is  that  he  shall  account  for  the  ap- 
praised value  at  least,  if  he  do  not  sell.  His  not  selling,  or 
not  producing  the  article  itself,  is  evidence  that  the  appraise- 
ment is  not  too  high.  But  these  circumstances  furnish  no 
evidence  that  the  appraisement  is  not  too  low.  (a) 

But,  if  it  should  be  holden  that  an  executor  (concerning 
whom  the  statute  is  silent)  or  administrator  is  entitled  to  take 
the  personal  estate  at  the  appraisal,  he  should  not  be  permitted 

(a)  And,  upon  a  strict  interpretation  of  the  statute,  what  hinders 
the  judge  from  ordering  a  sale;  and  at  the  instance  of  an  heir,  cred- 
itor, &c.  ? 


EXTRACTS  477 


From  Manuscript  Treatise  on  Probate  Law. 


to  take  less  than  the  whole.     To  permit  this  would  give  him 
a  very  great  advantage  over  the  other  party.^ 

[Allowance  to  Widow.     How  charged  in  Account.] 

There  is  also  another  charge  on  the  assets,  which  has  a 
preference  over  debts ;  namely,  the  allowance  made  by  the 
judge  of  probate  to  the  widow  of  the  deceased.  Laws,  243, 
257.  This  may  (especially  where  the  allowance  is  made  in 
kind)  be  considered  as  a  determination  that  certain  articles 
are  not  assets.  It  is  usual,  however,  whether  made  in  money 
or  specific  articles,  to  place  it  on  the  credit  side  of  the  admin- 
istration account. 

[Payment  of  Debts.     Privileged  Debts.] 

The  great  principle  of  our  laws  for  the  settling  the  estates 
of  persons  deceased  is  justice  founded  on  equality.  The 
estate  of  the  deceased  is  considered  as  a  fund  out  of  which 
the  creditors  (the  charges  being  deducted)  are  to  be  first 
satisfied.  One  creditor  is  not  permitted  to  acquire  an  undue 
preference,  and,  by  so  doing,  prevent  an  equal  distribution 
among  all  the  creditors. 

In  England,  where  a  trader  becomes  bankrupt  the  law  pro- 
vides for  an  equal  distribution  of  his  estate  among  his  creditors. 
4  Burn,  296  ;  3  G.  Bacon,  84.  But  where  a  person  dies  in- 
solvent, this  equitable  rule  of  distributive  justice  is  disregarded, 
and  creditors  of  one  description  are  entitled  to  full  payment ; 

^  The  inventory  is  not  conclusive  for  or  against  the  administrator  as 
to  the  value  of  the  articles  inventoried.  Willoughby  v.  McCluer,  1829, 
2  Wend.  608;  Ames  v.  Downing,  1850,  1  Bradf.  321;  and  see  Zilkin  v. 
Carhart,  1855,  3  Bradf.  376.  Such  is  now  the  statute  rule  in  New  York. 
N.  Y.  Rev.  Stat.  6th  ed.  vol.  3,  733,  §  14. 

The  inventory  does  not  preclude  the  administrator  from  showing  that 
the  intestate  did  not  own  the  property  inventoried.  Hoover  v.  Miller, 
1858,  6  Jones  (N.  C),  L.  79 ;  Cameron  v.  Cameron,  1862,  15  Wis.  1.  See 
Briggs  v.  Probate  Decree,  1817,  Brayt.  103. 

See  further,  as  to  effect  of  inventory,  Bradford,  Surrogate,  in  Mont- 
gomery V.  Dunning,  1852,  2  Bradf.  220,  and  in  Thomson  v.  Thomson,  1849, 
1  Bradf.  24,  30-32 ;  2  Redf .  WUls,  ed.  1866,  c.  7,  §  30,  1  10,  n. ;  3  Wil- 
liams, Ex.,  6th  Am.  ed.  2081,  n.  As  to  its  admissibihty  against  strangers, 
see  Seavey  v.  Seavey,  1858,  37  N.  H.  125. 


478  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


while  others,  whose  claims  have  equal,  and,  in  some  cases, 
superior,  merit,  can  recover  nothing.  It  is  generally  in  the 
power  of  the  executor  or  administrator  to  give  a  preference, 
according  to  his  mere  pleasure  or  caprice.  Toll.  224,  225  ; 
Chris.  N.  II.  611  ;  1  Went.  143;  4  Burn,  295. 

In  this  State  the  very  reverse  takes  place.  While  the  debtor 
is  alive,  one  creditor  may  secure  his  whole  debt,  while  another 
shall  be  able  to  obtain  nothing,  (a)  But  when  the  debtor  is 
dead,  the  general  principle  of  the  bankrupt  laws,  with  a  few 
exceptions,  is  adopted.  (6)  These  exceptions  are  now  to  be 
considered  under  the  head  of  privileged  debts,  or  debts  entitled 
to  priority. 

1.  Debts  contracted  in  relation  to  the  last  sickness  of  the 
deceased.  Laws,  ed.  1797,  255.  This  preference  is  founded 
on  humanity.  It  is  calculated  to  procure  for  the  poor  debtor, 
when  he  is  incapable  of  providing  for  himself,  that  assistance 
and  support  he  so  much  needs.  As  the  duty  is  enjoined  by 
humanity,  legislators  are  bound  to  afford  every  encouragement 
for  the  performance  of  it  in  their  power. 

There  does  not  seem  to  be  any  rule  established  for  deter- 
mining what  charges  come  within  the  description  of  last 
sickness.^ 

2.  The  second  species  of  debts  entitled  to  priority  are  those 
due  for  rates  and  taxes,  and  — 

3.  Debts  due  to  the  State  and  the  United  States.  Laws, 
255.2 

The  true  reason  for  the  preference,  I  apprehend,  is,  not  the 
dignity  and  importance  of  the  creditor,  but  "  the  regard  the 
law  hath  to  the  public  good,  beyond  any  private  interest." 
3  G.  Bacon,  79.     The  public,  who  are  capable  of  acting  only 

(a)  So  an  insolvent  debtor  may  prefer  one  creditor  to  the  rest. 

(b)  Et  vide  1  Campb.  147  and  n.  as  to  equity. 

1  See  Huse  v.  Brown,  1831,  8  Greenl.  167;  2  Williams,  Ex.,  6th  Am.  ed. 
1055,  n.  b. 

Claims  for  last  sickness  are  all  of  equal  degree;  the  executor  cannot 
prefer  one  to  another.     Bennett  v.  Ives,  1862,  30  Conn.  329. 

2  For  the  present  order  of  preference,  see  Gen.  Stat.  c.  180,  §§  18,  19; 
and  also  c.  177,  §  15. 


EXTRACTS  479 


From  Manuscript  Treatise  on  Probate  Law. 


by  agents,  are  subjected  to  disadvantages  when  their  rights 
and  interests  come  in  competition  with  individuals  who  act  for 
themselves. 

As  to  taxes,  it  can  work  no  injury  to  consider  them  as  a  lien 
on  the  estate  of  the  subject.  The  same  thing  may  be  said  of 
debts  due  to  the  public.  They  are  generally  matters  of  no- 
toriety, and  persons,  in  giving  credit,  may  be  supposed  to  cal- 
culate upon  them. 

The  act  of  Congress,  March  3,  1797,  declares  that  the  debt 
due  to  the  United  States  shall  be  first  satisfied.  This  must  be 
understood  to  mean  first  of  the  debts.  Comparing  this  provi- 
sion with  our  law,  it  seems  reasonable  to  place  it  on  a  level 
with  the  last  class  of  privileged  debts. 

Some  English  writers  make  mention  of  a  very  equitable 
preference  after  those  just  mentioned,  —  the  wages  of  domestic 
servants  and  laborers.  2  Coll.  Jurid.  460  ;  Toll.  225.  Our 
statute  does  not  warrant  this  very  reasonable  priority,  (a) 

[The  Insolvent  Course  of  Administration  ;    and  the  Solvent 

Course.] 

The  former  proceeds  on  the  ground  that  there  may  be  a  de- 
ficiency of  assets.  The  fact  may,  indeed,  be  otherwise,  in  the 
same  manner  as,  in  bankrupt  proceedings,  it  may  eventually 
happen  that  the  reputed  bankrupt  is  solvent.  Chris.  N.  II. 
602.1 

The  latter  course  of  administration  supposes  that  the  assets 
will  be  sufiicient ;  proceeding  in  this  course  is  an  admission  of 
assets.  1  Swift,  428,  429;  Kirby,  246.  If  the  contrary  be 
really  the  case,  still  the  executor  or  administrator  is  bound  to 
pay  all  the  debts,  unless  he  can  shift  his  course  and  place  him- 

(a)  In  the  ancient  laws  of  Virginia,  the  price  of  a  wife,  which  was 
estimated  at  150  lbs.  of  tobacco,  was  made  of  greater  dignity  than  any 
other  debt.  1  Life  of  Wash.  62.  1  Holmes,  American  Annals,  205.  "  The 
price  of  a  wife  shall  have  precedence  of  all  other  debts  in  recovery  and 
payment,  because  this  merchandise,  of  all  other,  was  deemed  the  most 
desirable."     Va.  Fundam.  Laws,  Chalmers,  46. 

1  In  a  note  to  a  subsequent  passage,  the  author  refers  to  1  Hutch.  394, 
for  the  "  origin  and  history  of  our  insolvent  course  of  administration." 


480  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


self  in  that  situation  where  he  can  apportion  the  assets  among 
the  claimants  equally,  that  is,  adopt  the  insolvent  course ;  for 
in  no  other  way  can  this  be  accomplished. 

[Representation  of  Insolvency.  When  to  be  Made.] 
Doubtless  one  reason  for  prohibiting  creditors  from  suing 
till  the  expiration  of  one  year  was  to  give  the  executor  or  ad- 
ministrator sufficient  time  to  ascertain  the  condition  and  cir- 
cumstances of  the  estate,  and  the  claims  upon  it,  and  to  make 
his  election  as  to  the  course  to  be  pursued  in  the  administra- 
tion, (a)  And  this  period  will  generally  be  sufficient  for  the 
purpose. 

The  statute  does  not  require  in  express  terms  that  the  rep- 
resentation of  insolvency  should  be  made  in  one  year ;  but  it 
declares  that  it  shall  be  done  before  the  payment  of  any  debts 
except  those  entitled  to  priority.  (6)  The  executor  or  admin- 
istrator is  not  obliged  to  pay  within  a  year.  The  honest  cred- 
itor is  injured  by  delay,  not  only  as  it  respects  the  time  of 
payment,  but  as  it  tends  to  lessen  the  sum  he  shall  eventually 
be  entitled  to  receive  ;  length  of  time  being  calculated  to  in- 
crease the  charges  of  administration,  and  being  also  unfavor- 
able to  honest  claims,  and  favorable  to  those  which  are  unjust. 
If  the  representation  can  be  made  after  the  year,  it  may  be 
made  after  suit  brought,  and  even  after  judgment  rendered. 
It  would  be  no  small  hardship  to  those  creditors  whose  debts 
are  small,  after  having  incurred  considerable  expense,  to  be 
turned  round  to  the  insolvent  course  of  administration,  and 
consequently  to  suffer  a  loss  on  the  costs. ^ 

On  the  other  hand,  it  may  happen  that  an  estate  may,  for 

(a)   See  Kames,  Law  Tracts,  353. 

(6)  Perhaps  the  meaning  is  that  the  executor  or  administrator  shall 
not  be  allowed  in  respect  to  any  payment,  except  for  debts  entitled  to 
priority. 

1  In  a  subsequent  part  of  the  treatise  it  is  said  in  a  note  :  *'  Semble, 
commissioners  .may  allow  costs  in  action  pending  on  the  claim  and  abated 
by  death  of  the  insolvent;  "  and  reference  is  made  to  12  Manuscript 
Reports,  249,  where  there  is  an  intimation  by  the  court  to  the  same  effect. 
See  the  present  statute.     Gen.  Laws,  c.  198,  §  8. 


EXTRACTS  481 


From  Manuscript  Treatise  on  Probate  Law. 


some  time,  appear  amply  sufficient  to  pay  the  debts,  and,  after 
the  expiration  of  a  year,  and  after  payment  of  some  of  the 
debts,  by  the  destruction  of  property,  the  unexpected  failure 
of  debtors,  or  by  the  appearance  of  claims  before  unknown, 
it  may  be  found  to  be  deeply  insolvent.  2  Eq.  Cas.  Abr. 
452.  In  such  case  it  would  hardly  be  compatible  with  our 
ideas  of  justice  to  compel  an  innocent  administrator  to  pay  the 
creditors  out  of  his  own  estate,  (a) 

The  last  paragraph  in  the  Act  for  the  Equal  Distribution  of 
Insolvent  Estates  (Laws,  ed.  1797,  260)  seems  to  imply  that 
the  representation  of  insolvency  may  be  made  after  a  year. 
But  this  clause  may  be  applicable  only  to  suits  abated  by  the 
death  of  the  defendant,  and  revived  against  his  representa- 
tive. 

It  has  been  determined  in  Connecticut,  where  the  law,  in 
this  respect,  is  like  ours,  that  the  executor  or  administrator,  at 
any  time  in  the  course  of  the  administration,  when  he  discov- 
ers that  the  estate  is  insufficient  to  pay  the  debts,  may  repre- 
sent it  to  be  insolvent.     1  Swift,  440. 

As  three  years  is  the  longest  period  allowed  for  exhibiting 
demands  against  the  estate  of  a  person  deceased,  and  as  within 
that  period  the  executor  or  administrator,  by  an  ordinary  de- 
gree of  care  and  diligence,  must  have  collected  and  secured 
the  assets,  it  seems  reasonable  not  to  permit  the  representation 
of  insolvency  to  avail  beyond  that  period. 

It  is  conceived  that  an  administrator  de  bonis  non  may  pro- 
ceed in  the  insolvent  course  of  administration  commenced  by 
his  predecessor,  and  may  also  adopt  this  course  as  well  as  the 
original  executor  or  administrator.  (6) 

[Whether  Commissioners  have  Authority  to  allow  a  Balance 
IN  Favor  of  the  Estate.] 

Where  there  are  mutual  debts  between  the  deceased  and  a 
creditor,  one  debt  may  be  set  off  against  the  other,  and  the 
balance  due  after  such  set-off  shall  be  allowed  in  the  same 

(a)  In   case   of   representation  of  insolvency,   made  after  suits  com- 
menced against  him,  see  Mass.  Law ;  and  see  1  Mass.  Rep.  502. 
(6)  6  Mass.  448. 

31 


482  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


manner  as  in  cases  of  bankruptcy.  1  Atk.  90  ;  1  Swift,  441 ; 
Ciillen,  192  ;  7  T.  R.  378. 

It  may  be  doubted  whether  the  commissioners  have  author- 
ity to  give  a  balance  to  the  estate  of  the  deceased  person,^ 
and  yet  it  seems  reasonable  that  they  should;  for  otherwise 
their  decision  upon  the  creditor's  claim  exhibited  will  be  ren- 
dered of  no  effect,  and  when  the  executor  or  administrator 
sues  he  must  sue  for  the  whole  demand;  of  course  the  other 
party  will  be  entitled  to  plead  his  by  way  of  set-off,  and  in  this 
State  may  recover  a  balance  contrary  to  the  decision  of  the 
commissioners. 

Perhaps  the  proper  course  to  be  pursued  by  the  commis- 
sioners is  to  give  the  balance,  where  the  executor  or  adminis- 
trator exhibits  his  claim,  and  it  is  less  than  that  of  the 
creditor,  in  which  case  it  should  be  expressed  in  the  report  as 
a  balance.  But  where  the  representative  does  not  exhibit,  or 
where  the  latter  demand  exceeds  the  former,  as  they  cannot 
do  complete  justice,  they  may  allow  the  claim  exhibited  so  far 
as  it  is  just,  and  leave  the  representative  at  liberty  to  prosecute 
his  demand  at  law,  in  which  case  the  other  party  will  be  enti- 
tled to  set  off  the  sum  allowed  by  the  commissioners  as  a  liqui- 
dated claim. 

[Power  of  compelling  Commissioners  to  make  Report.] 
[The  judge  of  probate]  does  not  seem  to  possess  the  power 
of  compelling  them  [the  commissioners]  to  make  report  after 
they  have  heard  the  claims.  But  it  is  conceived  that  the  Su- 
perior Court,  by  virtue  of  their  general  superintending  power 
over  all  inferior  jurisdiction,  may,  by  mandamus,  compel  the 
commissioners  to  execute  the  duties  of  the  office,  and  to  make 
due  return  of  their  doings. 

1  The  present  statute  is  as  follows  :  — 

"  When  there  are  mutual  demands  between  the  deceased  and  the 
person  claiming  as  a  creditor,  which,  if  due,  might  be  legally  or  equitably 
offset  against  each  other,  the  commissioner,  if  there  is  a  balance  in  favor 
of  such  creditor,  shall  consider  such  mutual  demands,  and  allow  the 
creditor  only  the  balance  justly  due."     Gen.  Laws,  c.  199,  §  9. 


EXTRACTS  483 


From  Manuscript  Treatise  on  Probate  Law. 


[Insolvent  Administration.     Non-exhibiting    Creditoks  barred, 

ALTHOUGH    THE    AsSETS     PROVE     MORE     THAN     SUFFICIENT     TO     PaY 

THE  Claims  Exhibited  and  Allowed.] 

As  to  those  who  do  not  exhibit,  it  is  declared  "  tluit  no 
action  against  any  executor  or  administrator  of  any  estate 
represented  insolvent  shall  be  sustained,  except  as  above  men- 
tioned ;  "  and  "  that  all  demands  against  any  insolvent  estate 
not  exhibited  to  the  commissioners  whilst  the  commission  of 
insolvency  is  pending,  shall  be  for  ever  barred,  unless  the  cred- 
itor can  find  some  estate  of  the  deceased  not  inventoried  or 
accounted  for  by  the  executor  or  administrator."  Laws,  ed. 
1797,  257,  259 ;  Kirby,  423.i  These  passages  admit  of  two 
constructions  only.  First,  that  the  bar  spoken  of  extends 
only  to  demands  against  an  estate  really  insolvent,  and  that 
the  prohibition  to  sue  at  law  is  to  be  understood  as  limited  to 
the  pendency  of  the  commission  of  insolvency,  or,  at  most,  till 
such  a  settlement  takes  place  as  shall  clearly  demonstrate  that 
the  estate  is  solvent. 

The  second  construction  is,  that  when  an  estate  is  adminis- 
tered in  the  insolvent  course,  the  demands  of  all  the  creditors 
not  exhibited  to  the  commissioners,  except  those  specially  ex- 
cepted, are  barred  in  the  same  manner  as,  in  bankruptcy  pro- 
ceedings, debts  due  from  the  ])ankrupt  at  the  time  of  the  act 
of  bankruptcy  committed  are  barred,  if  not  proved  under  the 
commission,  though  it  should  eventually  happen  that  the 
estate  should  be  solvent.     Act  Congress,  69 ;  1  Atk.  90. 

In  support  of  the  former  construction,  it  may  be  urged  that 
these  principles  are  the  basis  of  our  administration  laws, 
namely,  that  the  creditors  shall  receive  satisfaction  out  of  the 
estate  of  their  deceased  debtor  ;  that  nothing  goes  to  heirs  or 
devisees  where  there  are  unsatisfied  debts ;  that  the  insolvent 
course  of  administration  was  devised  for  the  purpose  of  secur- 
ing to  creditors  equality  in  the  distribution,  and  at  the  same 
time  of  protecting  the  honest  administrator  from  personal 
responsibility  in  case  of  a  deficiency  of  assets. 

They  who  contend  for  this  construction  must  admit  that  no 

1  See  present  statute,  Gen.  Laws,  c.  200,  §  16. 


484  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


suit  should  be  sustained,  as  long  as  it  is  doubtful  whether  the 
estate  is  solvent  or  not,  and  therefore  that  doctrine  that  the 
bar  is  confined  to  the  pendency  of  the  commission  of  insol- 
vency must  be  {ibandoned.  But  why  should  it  be  complained 
of  as  a  greater  hardship,  that  creditors  who  do  not  exhibit 
their  demands  should  be  barred  in  this  case  any  more  than  in 
others  ?  It  is  certainly  very  necessary  that  claims  should  be 
speedily  prosecuted,  that  the  estate  may  be  settled  in  a  reason- 
able time.  Allowing  the  testamentary  or  legal  heirs  of  the 
insolvent  to  enjoy  the  surplus  which  may  remain  after  paying 
the  claims  exhibited  is  no  greater  hardship  or  injustice  than 
allowing  the  bankrupt  to  enjoy  his  estate  which  remains  after 
satisfying  the  debts  proved  under  the  commission. 

But  a  sufficient  answer  to  the  doctrine  that  non-exhibiting 
creditors  are  entitled  to  satisfaction  out  of  the  estate  which 
remains  after  paying  all  the  claims  allowed  and  the  charges 
is  that,  according  to  our  system  of  laws,  it  is  wholly  im- 
practicable. Let  us  suppose  this  surplus  to  be  $500.  Sup- 
pose also  that  the  non-exhibiting  creditors  have  just  claims 
to  the  amount  of  $1,500.  How  shall  these  be  satisfied? 
The  estate  is  still  insolvent.  When  one  of  these  creditors 
sues,  he  must  either  recover  the  whole  or  no  part^  of  his 
demand.  Courts  of  common  law  cannot  liquidate  all  the 
claims,  and  consequently  cannot  apportion  the  assets  ratably. 
They  cannot  even  know  how  many  claims  of  this  description 
exist. 

The  inconvenience  and  injustice  complained  of  might  be 
remedied  in  this  way.  Provision  made  b)'  law,  that  creditors 
after  the  limited  time  might  go  on  to  prove  their  debts,  either 
at  law  or  before  the  commissioners,  to  be  satisfied  out  of  any 
assets  remaining  after  satisfaction  of  the  claims  exhibited  and 
proved  within  the  time  limited.     2  Bro.  48,  50, 119,  120.  (a) 

(a)  In  Connecticut,  where  the  law  is  similar,  it  is  conceived,  to  ours  in 
this  particular,  a  claim  under  such  circumstances  that  it  could  not  be 
exhibited  within  the  Umited  time  is  not  foreclosed,  but  may  be  recovered 
afterwards  if  the  estate  prove  solvent. 

1  A  pencil  note  indicates  the  reading  "  a  part,"  instead  of  "  no  part; " 
but  it  is  not  certain  that  the  note  was  made  by  the  author. 


EXTRACTS  485 


From  Manuscript  Treatise  on  Probate  Law. 


The  statute  (p.  257)  provides,  in  favor  of  non -exhibiting 
creditors,  that,  if  they  can  find  estate  of  the  deceased,  not  in- 
ventoried or  accounted  for,  they  shall  receive  out  of  it  a  divi- 
dend equal  to  what  the  other  creditors  received,  the  residue 
to  be  added  to  the  general  fund,  and  divided  in  due  proportion 
among  all  the  creditors. 

[Failure  of  Executor   to   proceed  promptly  with  Settlement 
OF  Estate  after  adopting  Insolvent  Course.] 

In  case  the  executor  or  administrator,  after  permission  to 
administer  in  the  insolvent  course,  shall  neglect  to  take  out  a 
commission  of  insolvency  ;  to  appear  before  the  commissioners 
and  take  care  of  the  interest  of  those  concerned  in  the  estate  ; 
to  cause  the  commissioners  to  perform  their  duty,  and  make 
return  of  their  proceedings ;  and  generally  to  do  every  thing 
which  the  duty  of  his  oflBce  requires  to  be  done,  that  the  estate 
may  be  speedily  and  honestly  settled  in  the  insolvent  course  of 
administration;  the  judge  of  probate  ought  to  have  power,  in 
case  he  has  it  not,  to  discharge  the  insolvent  proceedings,  and 
turn  the  administration  into  a  solvent  one,  that  the  represent- 
ative of  the  deceased  may  not  have  it  in  his  power  to  avail 
himself  of  a  shield  so  unworthily  employed,  (a) 

[Of  the  Statute  exempting  Executors  and  Administrators  from 
Suits  for  One  Year.     N.   H.  Laws,  Ed.  1797,  260.] 

The  words  of  the  act  giving  this  privilege  are  broad  enough 
to  comprehend  administrators  de  bonis  non,  and  other  special 
administrators.^  But  giving  the  act  this  construction  might, 
in  effect,  deprive  creditors  of  any  remedy. 

(a)  It  seems  pretty  clear  that  the  judge  of  probate  may  at  any  time 
order  the  executor  or  administrator  to  account,  and,  if  he  has  neglected 
to  perform  his  duty  in  carrying  on  the  administration  in  this  course,  he 
may  be  punished  in  damages  on  the  administration  bond,  because  this 
will  not  be  administering  according  to  law.  A  decree  of  distribution 
cannot  be  made  till  the  claims  are  liquidated.  If  a  claim  is  allowed  by 
fraud  or  collusion  between  the  claimants  and  the  representative,  the  judge 
may  charge  the  executor  or  administrator  with  the  amount  of  it. 

1  The  present  statute  prohibits  suits  "  within  one  year  after  the  original 
grant  of  administration."     Gen.  Laws,  c.  198,  §  1. 


486  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


It  cannot  extend  to  actions  on  the  administration  bond,  for 
that  may  be  forfeited  in  three  months.^ 

[Of   CoNTKlBUTION   BKTWKKN  SPECIFIC   DkVISKS    AND  SPECIFIC   LeGACIKS 
FOK    TIIK    PaYMKNT    OF    Df.BTS.] 

[After  enumerating  the  classes  of  assets  which  must  be 
applied  before  recourse  can  be  had  to  specific  devises  and 
legacies.]  If  these  prove  insufficient,  recourse  must  then  be 
had  to  the  estate,  real  and  personal,  specifically  devised  and 
bequeathed  (4  Burn,  334,  338),  and  the  devisees  and  legatees 
must  contribute  ratably.  In  England,  on  account  of  the 
favor  shown  to  lands,  the  personal  estate  specifically  be- 
queathed must  be  first  applied.  But  it  is  conceived  that  this 
doctrine  adopted  here  would  generally  counteract  the  inten- 
tions of  the  testator,  (a)  ^ 

(a)  And  it  may  well  be  doubted  whether  specific  legatees  and  devisees 
should  not  be  held  to  contribute  ratably  with  the  pecuniary  legatees, 
especially  where  they  are  .all  in  the  same  relation  to  the  testator.  It  is 
not  uncommon  for  parents  to  give  the  real  estate  to  sons,  specific  legacies 
to  the  widow,  and  pecuniary  legacies  to  the  daughters.  It  may  be 
observed,  in  answer  to  this,  that  it  is  to  be  presumed  that  the  testator 
knew  the  legal  preference  of  specific  legatees  over  general  and  pecuniary 
ones,  and  also  that  a  bequest  of  a  particular  chattel  furnishes  evidence 
more  clear  of  the  intention  of  the  testator  in  favor  of  the  legatee,  than 
what  results  from  a  general  legacy  bottomed  on  an  uncertain  fund. 
Probably  the  difficulty  in  practice  of  applying  the  doctrine  of  abatement 
to  specific  legacies  may  also  have  had  some  influence  in  forming  the 
rule. 

1  See  note  to  Parker  v.  Willard,  reported  ante,  212. 

2  Specific  devisees  must  contribute  ratably  with  specific  legatees.  Gen. 
Laws,  c.  20:3,  §  14;  Farnum  v.  Ba.tcom,  1877,  122  Mass.  282;  ArmMramfs 
Appeal,  18G9,  63  Pa.  St.  312;  HnlloweWs  Estate —Teas' s  Appeal,  1854, 
23  Pa.  St.  223;  Wagner,  J.,  in  BranCs  Will,  18(37,  40  Mo.  266,  280,  281. 
And  see  Bkadford,  Surrogate,  in  Skidmore  v.  Romaine,  1852,  2  Bradf. 
122,  132. 

Contra.  Rogers  v.  Rogers,  1828,  1  Paige,  Ch.  188;  Miller  v.  Harwell  1819, 
3  Murph.  (N.  C.)  194;  Haiu'KU,  J.,  in  Warletj  y.  Warley,'\^i\,  1  Bailey, 
Eq.  397,  409;  Hull  v.  Hull,  1850,  3  Rich.  (S.  C.)  Eq.  65  (overruling 
the  opinion  of  Dargan,  Circuit  Chan.,  reported  s.  c.  66-77)  ;  Lee,  J.,  in 
Elliott  v.  Carter,  1853,  9  Gratt.  511,  549,  550. 

In  some  American  cases,  contribution  has  been  held  enforceable  only 


EXTRACTS  487 


From  Manuscript  Treatise  on  Probate  Law. 


[Whkn  Administratoh  may  pi.kad  Insolvency  of  Estatk  in  Bar  to 

scire  facias.'] 

When  a  creditoi*  or  legatee  recovers  judgment  against  an  ex- 
ecutor or  administrator,  the  first  execution  is  de  bonis  testatoris 
or  intestati.  If  return  be  made  that  the  representative  refuses  to 
show  goods  of  the  deceased  (for  it  will  not  be  suflScient  that  he 
show  lands),  scire  facias  is  then  brought  to  have  execution  de 
bonis  propriis.  1  Swift,  428,  429  ;  Brattle  v.  Willard,  C.  C.  U.  S. 
[reported  ante'].  To  this  the  executor  or  administrator  cannot, 
generally  speaking,  plead  what  he  might  have  pleaded  to  the 
original  suit.    Ruffin  v.  Pendleton,  1796,  2  Wash.  ( Va.)  184.  (a) 

But,  if  the  judgment  was  merely  to  liquidate  the  claim,  or 
obtained  on  the  report  of  referees,  (5)  or  the  estate  be  repre- 
sented insolvent  after  the  rendering  of  the  judgment,  it  would 
seem  that  the  insolvency  may  be  pleaded  in  bar. 

(a)  The  case  is  the  same  in  respect  of  other  matters.  The  defendant 
to  a  scire  facias  on  a  judgment  cannot  plead  alienage  of  the  plaintiff. 
Errors  in  process  and  the  proceedings  are  waived  by  omitting  to  plead 
them  or  take  advantage  of  them  in  season.     1  G.  Bacon,  140. 

(b)  Where  the  judgment  is  for  the  defendant  on  a  submission  of  all 
demands,  it  is  clearly  an  award  sanctioned  by  a  court  of  law  to  be  executed 
in  the  manner  other  judgments  are,  and  this  according  to  the  particular 
practice  of  this  State. 

as  to  specialty  debts:  Shreve  v.  Shreve,  1864,  17  N.  J.  Eq.  (2  C.  E.  Green) 
487  (and  see  also  Bkasley,  C.  J.,  in  Thomas  v.  Thomas,  1866,  17  N.  J. 
Eq.  (-2  C.  E.  Green)  356,  358);  Chase  v.  Lockerman,  1840,  11  Gill  &  J. 
185,  204;  or  where  the  testator  gives  a  general  direction  that  his  debts 
shall  be  paid  :  Shreve  v.  Shreve,  2  Stockt.  385  (see  also  Elliott  v.  Carter, 
ubi  sup.). 

In  England,  since  the  statute  3  &  4  W.  &  M.  c.  14  (making  both  lands 
and  chattels  liable  for  specialty  debts),  specific  devisees  must  contribute 
ratably  with  specific  legatees  to  the  payment  of  specialty  debts.  This 
was  so  held,  in  Long  v.  Short,  1717,  1  P.  Wms.  403;  and  the  authority  of 
that  case,  though  at  one  time  doubted,  is  now  fully  established.  Gervis 
V.  Gervis,  1847,  14  Sim.  654;  Tombs  v.  Roch,  1846,  2  Coll.  490  (see 
especially  Knight  Bruce,  V.  C,  503).  It  is  said  that,  in  England,  con- 
tribution is  no  longer  confined  to  specialty  debts,  now  that  simple-contract 
creditors  have  a  remedy  there  against  the  land.  See  Adams,  Eq.  263, 
Am.  n.;  3  Williams,  Ex.,  6th  Am.  ed.  1796,  I.  1. 


488  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


[Whether  Administrator  in  Solvent  Course  may  set  xtp  Want  of 
Assets  in  Defence  to  scire  facias.l 

By  electing  to  pursue  the  solvent  course  of  administration, 
the  executor  or  administrator  admits  assets  as  far  as  creditors 
are  concerned,  (a)  and  therefore,  after  a  year,  a  suit  may  be 
maintained  against  him  by  the  creditor.  He  may  plead  every 
thing  in  bar  which  the  testator  or  intestate  could  have  pleaded, 
and  also  the  limitation  prescribed  by  the  statute  as  to  exhibiting 
the  demand  to  him.  Laws,  ed.  1797,  249,  251,  252.  But  he 
cannot  plead  any  thing  in  denial  of  assets,  unless  the  estate 
were  exhausted  in  the  payment  of  charges,  or  in  charges  and 
debts  entitled  to  priority,  in  which  cases,  the  same  being  so 
settled  in  the  probate  court,  he  may  plead  the  facts,  and 
prove  them  by  a  copy  of  the  proceedings.     3  G.  Bacon,  87. 

The  judgment  is  (if  against  the  executor  or  administrator) 
against  the  estate  of  the  deceased,  and  the  execution  is  de 
bonis  testatoris  vel  intestati.  If  the  sheriff  return  nulla  bona 
or  devastavit,  or,  which  is  the  same  thing,  that  no  goods  of  the 
deceased  are  shown  to  him  whereon  to  levy  (though  lands 
may  have  been  shown),  the  creditor  may  then  have  a  scire 
facias,  suggesting  waste,  and  praying  for  execution  de  bonis 
propriis.     N.  H.  Laws,  238,  250  ;  Mass.  Laws,  8vo,  93,  94. 

To  this  the  executor  or  administrator  cannot  plead  any 
thing  which  he  might  have  pleaded  to  the  original  suit. 
Kirby,  257  ;  1  Salk.  310. 

But  if  the  insolvent  course  of  administration  has  been  com- 
menced since  the  judgment  in  the  original  suit,  it  may  be 
pleaded  in  bar  of  execution.^ 

So  where  the  judgment  was  rendered  pending  the  insolvent 
proceedings,  or,  after  their,  commencement,  on  the  report  of 
referees  and  submission  of  all  demands,  in  a  suit  by  the  exec- 
utor or  administrator  against  the  person  obtaining  judgment, 

(^n)  Or,  more  correctly,  —  By  neglecting  to  proceed  in  the  insolvent 
course,  the  executor  or  administrator  admits  that,  if  there  is  any  thing 
for  the  creditors  whose  debts  are  not  entitled  to  priority,  there  is  enough 
for  all  ;  for  a  court  of  law  can  make  no  apportionment. 

1  "  Queer e  "  is  written  in  the  margin  against  this  paragraph. 


EXTRACTS  489 


From  Manuscript  Treatise  on  Probate  Law. 


in  which  case  it  could  not  be  pleaded  before  ;  or  on  an  action 
brought  against  the  executor  or  administrator,  and  he,  having 
objection,  shall  have  consented  to  this  mode  of  liquidating  the 
claim  (N.  H.  Laws,  ed.  1797,  259),  —  the  insolvent  proceed- 
ings may  be  pleaded  in  bar  of  the  scire  facias. 

It  is  difficult  to  understand  what  is  meant  by  a  clause  to  be 
found  both  in  the  testate  and  intestate  acts  (N.  H.  Laws,  ed. 
1797,  238,  250),  that,  on  scire  facias  suggesting  waste,  the  ex- 
ecutor or  administrator  shall  be  subjected  to  execution  of  his 
own  goods  and  estate  to  the  value  of  the  waste  committed, 
where  it  can  be  ascertained ;  otherwise  for  the  whole  sum 
recovered,  (a) 

(a)  These  paragraphs  are  copied  literally  from  the  Province  Law 
enacted  May  14,  1714;  and  are  similar  to  the  Massachusetts  Law,  8vo, 
93,  94. 

It  is  now  settled  in  England  that  the  executor  or  administrator  to  the 
original  suit  may  plead  plene  adminisiravit,  as  well  as  non  assumpsit  of  the 
testator  or  intestate,  and  the  jury  may  find  how  much  he  has  administered, 
how  much  he  has  wasted ;  and  he  shall  only  be  charged  for  what  remains 
unadministered,  or  to  the  amount  of  the  waste.  3  T.  R.  687.  But  where 
he  is  supposed  to  admit  assets  by  not  denying  them,  he  is  always  charged 
for  the  plaintiff's  whole  debt.  It  is  probable  this  clause  was  intended  to 
remedy  this  evil.  And,  as  the  admission  took  place  in  the  original  suit, 
he  was  allowed  to  deny  assets  on  the  scire  facias,  and  he  was  chargeable 
only  with  the  amount  of  assets  or  the  amount  of  waste.  This  would  be 
the  effect  of  the  clause  on  the  supposition  the  English  course  of  adminis- 
tration, as  it  respects  paying  debts,  was  pursued  here.  But  here  there 
can  be  no  such  thing  as  an  apportionment  of  assets,  except  in  the  insolvent 
course.  To  give  effect,  therefore,  to  this  clause,  the  executor  or  adminis- 
trator should  be  permitted,  after  judgment,  to  adopt  the  insolvent  course, 
and  to  plead  it  to  the  scire  facias.  In  this  way,  the  amount  of  the  assets 
or  waste  can  be  ascertained  and  the  representative  charged. 

A  similar  clause  in  act  of  Parliament  would  have  this  effect.  When  the 
creditor  on  default,  confession,  or  omitting  to  plead  want  of  assets  on  the 
part  of  the  executor  or  administrator,  recovered  judgment;  or  when,  on 
plene  administravit  pleaded,  it  was  found  against  the  representative,  and  the 
sum  unadministered  was  not  ascertained,  —  on  scire  facias  for  execution 
de  bonis  propriis,  the  representative  might  plead,  in  the  case  of  admission  of 
assets,  "  I  have  not  wasted;  let  the  jury  now  inquire."  By  not  pleading 
want  of  assets  in  season,  he  would  be  subjected  to  judgment;  but,  if  it 
appeared  that  he  had  not  wasted,  judgment  would  be  for  damages  merely 
nominal;  and,  if  he  bad  wasted,  only  to  the  amount  of  the  waste.     And, 


490  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


[Remkdy  against  Executors  and  Administrators  by  Creditors  in 
THE  English  Law;  how  it  might  he  made  more  Direct. i] 

[Where  the  representative  by  his  pleading  in  the  original 
suit  has  admitted  assets],  if  the  debt  is  established,  the  con- 
in  the  case  of  plene  adminwtravit  pleaded  and  found  against  tiie  representa- 
tive, the  jury  would  now  liquidate  the  sum  in  respect  of  which  he  was 
justly  chargeable. 

In  this  State,  if  the  clause  has  any  effect,  it  must  be  this:  to  permit  the 
representative  on  scire  facias  to  plead  in  such  a  manner  as  to  prevent  his 
being  chargeable  beyond  the  assets  or  beyond  waste  committed.  Proceed- 
ings in  the  probate  court  will  clearly  ascertain  both.  What  he  is  charged 
with  in  his  administration  account  is  all  the  estate  he  has  received  or  could 
receive.  He  is  charged  with  the  full  amount  of  waste  committed  by 
him.* 

^  This,  and  the  five  next  extracts,  have  been  taken  from  notes,  in  the 
nature  of  an  appendix,  at  the  close  of  the  treatise ;  and  are  inserted  in 
this  place  on  account  of  their  bearing  on  the  topic  of  the  extract  imme- 
diately preceding.  Perhaps,  upon  a  revision,  the  author  would  have  sub- 
stituted portions  of  the  Appendix  in  place  of  some  passages  in  the  body 
of  the  work. 

*  The  question  whether  an  administrator  can  plead  want  of  assets  to  a  scii-e  facias 
founded  on  a  judgment  rendered  in  an  action  where  he  was  defendant,  has  not  been 
decided  in  any  reported  case  in  this  State.  In  Pillsbury  v.  Hubbard,  18.39,  10  N.  H.  224, 
233,  Parker,  C.  J.,  expressed  the  opinion  that  the  defendant  administrator  could  plead 
this  defence  to  a  scire  facias.  See  also  Sawyer,  J.,  iti  folsom  v.  Blaisdell,  18-59, 
38  N.  H.  100,  103,  104.  In  Peaslee  v.  Kelly,  18.59,  38  N.  H.  372,  Bell,  J.,  used  language 
from  which  a  contrary  inference  has  sometimes  been  drawn.  But  in  none  of  these  cases 
was  this  point  directly  before  the  court.  In  Pillsbury  v.  Hubbard,  the  sole  question  was  as 
to  the  form  of  entering  judgment  in  the  fir.st  instance ;  there  was  no  scire  facias  pending. 
And  both  in  that  case  and  in  Folsom  v.  Blaisdell  the  administrator  was  plaiiititf  in  the 
original  action.  Peaslee  v.  Kelly  came  before  the  court  upon  demurrer  to  the  scire  facias. 
The  question  was  as  to  the  sufliciencj'  of  the  plaintiff's  allegations,  anil  not  as  to  what 
might  be  ph^aded  in  answer  thereto. 

There  is,  however,  an  unreported  case  where  this  point  was  directly  decided;  viz., 
Daniel  A.  Hill  v.  Alexander  Rogers,  Ex^r,  ]\Ierrimack,  .June  Law  Term,  1871. 

This  was  a  scire  facias,  alleging  recovery  of  judgment  by  plaintiff  against  defendant, 
executor  of  Frances  A.  Goodrich,  October  Term,  18(58,  the  issuing  of  an  execution  against 
the  testatrix's  estate  in  defendant's  hands;  and  a  return  of  nulla  bona. 

Defendant,  in  answer  to  the  summons  to  show  cause  why  execution  should  not  issue 
&g&\nst  him  de  bonis propriis,  pleaded:  1st,  That  on  the  day  of  the  issuing  the  writ  of 
scire  facias,  he  had  fully  administered  all  the  goods  and  chattels  of  the  testatrix  which 
had  ever  come  into  his  hands,  and  that  he  had  no  goods  of  the  testatrix  in  his  hands  at 
the  time  the  judgment  was  rendered,  or  on  the  day  the  scii-e  facias  was  issued,  or  at  smy 
time  since.  2d,  That  neither  on  the  day  of  his  appointment,  n  ir  at  any  time  since, 
were  there  any  goods  or  chattels  which  belonged  to  the  testatrix  at  the  time  of  her 


EXTRACTS  491 


From  Manuscript  Treatise  on  Probate  Law. 


sequence  is  that  he  is  liable  for  the  whole  demand.  The 
judgment,  indeed,  is,  that  the  plaintiff  recover  against  the  goods 
of  the  deceased.  1  Com.  Dig.  Adm.  C.  3.  But  on  return  of 
execution,  and  nulla  bona  or  devastavit  returned,  and  debt 
on  the  judgment,  suggesting  waste,  or  scire  facias  brought  and 
a  similar  suggestion  made,  the  question  occurs  whether  he 
has  wasted  the  assets.  This  is  a  short  trial  ;  if,  in  the  original 
suit,  he  denied  assets,  and  it  was  found  against  him,  he  is  con- 
cluded from  denying  it  again  ;  if  he  omitted  to  plead  want  of 
assets  to  the  original  suit,  he  admitted  assets,  and  shall  not 
now  deny  that  he  has  any.  1  Wras.  Saund.  219  b,  n.  8. 
Execution  shall  now  go  de  bonis  propriis. 

It  would  seem  that  this  circuitous  course  might  have  been 
avoided.  Wherever  the  first  judgment  was  rendered  in  such 
a  manner  and  under  such  circumstances  that  it  concludes  a 
denial  of  assets  on  a  scire  facias  or  action  founded  on  it 
(3  T.  R.  688),  the  judgment  might  have  been  de  bonis  testa- 
toris  vel  intestati,  et  si  non,  de  bonis  executoris^  ^c,  and  execu- 
tion issue  against  both.     1  Wms.  Saund.  219,  n.  8. 

[Omission  by  the  administrator  to  seasonably  plead  Insolvency; 

CONSIDERED    UNDER    THE    HeaD    OF    REMEDIES   AGAINST   ADMINISTRATOR 

BY  English   Law.] 

Nothing  can  be  pleaded  to  scire  facias  on  judgment,  which 
might  have  been  pleaded  to  the  original  suit.     If  a  party  do 

decease;  and  that  no  E^oods  or  chattels  which  belonged  to  the  testatrix  at  the  time  of  her 
decease,  at  the  time  of  his  appointment  as  executor,  or  at  any  time  since,  ever  came  to 
his  hands  to  be  administered. 

Plaintiff  dfinurred  to  both  pleas. 

It  was  decided  (one  or  more  of  the  judges  dissenting)  that  the  pleas  were  bad. 

It  wa-,  however,  intimated  that,  if  good  cause  could  be  shown  for  such  a  proceeding, 
the  executor  might  obtain  Hn  onler  at  the  Trial  Term  to  bring  forward  the  original  action 
and  vacate  the  judgment,  giving  him  leave  to  plead  anew  in  that  suit.  Such  a  motion 
was  made  in  that  case  at  April  Trial  Term,  1872.  The  presiding  justice  denied  the 
motion,  but  not  upon  the  ground  of  want  of  power  to  grant  it. 

In  Rnymmid  v.  Stiles,  reported  ante,  87,  it  was  held  that  an  administrator  in  the  sol- 
vent course  cannot  plead  want  of  assets  to  debt  on  a  judgment  recovered  against  him, 
suggesting  waste. 

As  to  the  author's  view,  that  the  administrator  may,  after  judgment,  adopt  the 
insolvent  course  of  administration  and  plead  the  insolvency  proceedings  in  answer  to  the 
scire  facias,  see  note  to  a  subsequent  "  Extract,"  citing  Coleman  v.  Hall,  and  other 
cases.  This  method  of  defence  was  not  attempted  in  the  New  Hampshire  cases  above 
cited. 


492  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


not  avail  himself  of  the  opportunity  of  pleading  matter  in  bar 
to  the  original  action,  he  cannot  afterwards  plead  it,  either  in 
another  action  founded  on  it,  or  on  a  scire  facias. 

The  case  of  Harris  v.  Hale,  adm'x,  in  the  county  of  Cheshire, 
was  rightfully  decided  on  this  principle.  She  omitted  to  plead 
the  insolvency  when  she  ought  to  have  pleaded  it. 

[Remedies  against  Executors  and  Administrators  by  our  Law.] 
The  general  principle  of  the  English  law,  that  the  represent- 
ative is  chargeable  to  the  amount  of  the  assets  under  his 
control,  and  no  farther,  prevails  here.  It  is  also  conceived  that 
the  principle,  that,  if  a  party  do  not  avail  himself  of  an  oppor- 
tunity of  pleading  matter  in  bar  to  the  original  action,  he  can- 
not afterwards  plead  it,  either  on  another  action  founded  on 
the  judgment,  or  on  a  scire  facias,  will  be  recognized  here. 

[Administrator  in  Solvent  Course  cannot  plead  a  General  plene 
adminisiravit  ;  but  may,  in  certain  cases,  plead  a  Plea  in  the 
Nature  of  a  Special  plene  administravit.'] 

Where  the  executor  or  administrator  does  not  proceed  in 
the  insolvent  course  of  administration,  he  cannot  deny  assets  ; 
he  can  only  plead  to  the  merits  of  the  demand. 

Plene  administravit,  general  or  special,  in  England,  is  a  plea 
which  denies  that  there  are  any  assets  to  satisfy  the  debt  to 
which  it  is  pleaded,  or  beyond  a  certain  sum.  It  is  not  a 
denial  of  assets  to  satisfy  debts  in  general.  When  it  is 
pleaded,  the  jury  try  the  truth  of  the  plea  ;  that  is,  they 
examine  the  administration  account ;  what  estate  the  adminis- 
trator has  realized  or  might  have  realized  ;  waste  committed  by 
him,  positive  and  implied ;  the  administration  charges ;  debts 
paid.  These  things  can  be  tried  nowhere  else  at  law ;  they 
cannot  be  tried  in  the  spiritual  court,  though  they  may  be 
tried,  and  usually  are,  in  equity.  2  Fonbl.  413  (t}.  But  our 
probate  courts,  by  their  own  powers  and  by  the  intervention 
of  commissioners,  tr}'  these  questions.  Our  courts  of  common 
law  cannot.  With  us,  in  case  of  an  insolvent  administration, 
the  creditors  cannot  generally  sue  at  law  ;  in  cases  where  they 
can  sue,  still  the  courts  are  bound  by  the  doings  of  the  probate 


EXTRACTS  493 


From  Manuscript  Treatise  on  Probate  Law. 


court.  It  is  absurd  to  say  that  the  executor  or  administrator 
can  plead  plene  administravit  when  our  courts  are  incompe- 
tent to  try  the  plea,  (a) 

Administering  in  the  insolvent  course  is  the  only  way  in 
which,  in  general,  the  assets  can  be  apportioned.  Where  there 
is  any  estate  for  any  creditor  not  privileged,  but  not  enough 
to  pay  them  all,  the  estate  must  be  administered  in  that  course. 
Where,  therefore,  the  executor  or  administrator  does  not  pur- 
sue tiie  insolvent  course  of  administration,  he  admits  assets, 
provided  there  is  any  estate  to  be  apportioned  among  the 
unprivileged  creditors.  (A) 

But  where  there  is  no  estate  to  be  apportioned,  there  is  no 
need  of  administering  in  the  insolvent  course  ;  that  is,  where 
the  assets  are  exhausted  in  the  charges,  or  where  no  estate  is 
found  to  be  administered  upon.  It  would  be  absurd  to  sub- 
ject the  administrator  or  the  creditors  to  the  expense  and 
trouble  of  proving  their  debts  where  there  were  no  assets  to 
satisfy  tliem. 

So,  where  the  estate  shall  be  exhausted  in  payment  of  the 
charges  and  the  debts  entitled  to  priority,  there  is  no  occa- 
sion to  administer  in  the  insolvent  course.  In  both  cases, 
certainly  in  the  former,  the  estate  may  be  fully  settled  in  the 
probate  court  without  the  intervention  of  commissioners.  And 
when  so  settled,  this  may  be  pleaded,  as  a  sort  of  special  plene 
administravit,  to  the  action  of  a  creditor  ;  the  plea  will  show 
that  the  estate  has  been  administered  according  to  law,  and 
that  there  is  nothing  for  the  demand  in  suit.^ 

[What  may  be  pleaded  by  an  Executor  to   a   scire  facias  for  an 
Execution  de  bonis  propriis.l 

But  let  us  now  suppose  that  judgment  is  obtained  against 
the  executor  or  administrator,  and  inquire  what  defence  be 
can  set  up  to  a  scire  facias  tor  execution  against  his  own  estate. 

(a)  Defendant  must  plead  what  the  court  can  try  the  truth  and  legal 
effect  of,  viz.,  the  proceedings  in  the  probate  court. 

(b)  And  if  there  be  none,  he  must  so  plead. 

1  See  note  to  a  previous  "  Extract  "  on  the  same  topic. 


494  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


Here  we  shall  have  occasion  to  examine  the  doctrine  what 
shall  be  an  admission  of  assets,  and  what  shall  charge  the 
executor  or  administrator. 

As  to  false  pleading  of  the  executor  or  administrator,  and 
judgment  against  him,  it  does  not  come  under  our  considera- 
tion here  ;  the  first  judgment  is  against  the  executor  or  admin- 
istrator as  well  as  against  the  estate  of  the  deceased. 

1.  If,  at  the  time  of  pleading  to  the  scire  facias  for  execution 
de  bonis  propriis^  the  estate  is  under  the  solvent  course  of 
administration,  nothing  can  be  pleaded  in  bar  of  execution 
which  could  have  been  pleaded  before.  The  English  doctrine 
strictly  applies.  («) 

2.  But  let  us  suppose  that  the  estate  was  under  the  insol- 
vent course  of  administration  at  the  time  of  rendering  the 
original  judgment,  or  at  the  time  of  commencing  the  suit  on 
which  it  was  rendered,  and  the  insolvency  were  then  pleaded, 
and  the  plea  found  to  be  no  bar.  It  certainly  ought  not  to  be 
again  pleaded  to  the  scire  facias. 

3.  We  will  now  suppose  that  it  was  not  pleaded  (b)  though 
the  administration  was  then  going  on  in  the  insolvent  course, 
but  that  the  judgment  was  rendered  on  default,  confession  of 
the  plaintiff 's  demand  ;  plea  either  the  general  issue  or  in  bar 
of  the  demand.  Can  the  executor  or  administrator  now  plead 
the  insolvent  course,  and  so  compel  the  creditor  to  take  his 
dividend  with  the  other  creditors,  if  his  claim  was  liquidated 
before  dividend  made,  or,  if  liquidated  afterwards,  to  come 
in  for  after-dividend  or  new  estate  only  if  he  should  discover 
any  unad ministered  ? 

If  we  say  he  may  now  plead  the  insolvency,  do  we  not  con- 
tradict the  principle  that  he  shall  not  plead  to  the  scire  facias 

(a)  All  the  reasons  which  forbid  such  a  plea  [a  general  plene  adminis- 
traoit  f]  to  the  original  suit  exist,  and  the  additional  ones  which  are  the 
ground  of  the  principle  that,  on  scire  facias,  a  party  shall  not  avail  himself 
of  what  he  might  have  pleaded  to  the  original  suit. 

(6)  In  Massachusetts  (1  Mass.  234),  there  is  an  act  which  says  that 
executors,  &c.,  may  give  special  matter  in  evidence  under  the  general 
issue  (Act  March  10,  1784,  §  9).  Quaere,  whether,  under  this,  insol- 
vency may  be  given  in  evidence. 


EXTRACTS  495 


From  Manuscript  Treatise  on  Probate  Law. 


what  he  might  have  pleaded  to  the  original  action  ?  Plead- 
ing insolvency  to  the  original  suit,  under  these  circumstances, 
is  not  like  pleading  want  of  assets  in  England.  It  is  no  bar 
to  the  demand,  but  only  to  the  remedy.  It  is  not  a  denial  of 
assets,  and  therefore  omitting  to  plead  it  is  not  an  admission 
of  assets.  Pleading  it  was  declaration  that  the  executor  or 
administrator  does  not  consent  that  the  claim  of  the  creditor 
should  be  settled  by  couise  of  law.  Omitting  to  plead  it  is  a 
waiver  of  objection  to  that  course  ;  it  is  a  consent  that  the 
legal  course  should  be  pursued  lor  liquidation.' 

Our  law  has  provided  two  modes  of  liquidating  demands 
against  estates  administered  in  the  insolvent  course  ;  namely, 
by  suit  at  law,  or  by  the  intervention  of  commissioners. 
Suffering  the  suit  to  go  on  is  evidence  of  consent  to  that 
mode.  Confessing  judgment  when  insolvent  administration 
pending,  &c.,  suffering  judgment  by  default,  or  defending  the 
suit,  has  precisely  the  same  effect,  and  no  other,  as  such  con- 
fession, default,  or  defending  would  have  before  the  commis- 
sioners. 

In  this  way  no  injury  is  done  to  the  creditor,  and  none  to 
the  estate  ;  it  is  the  shortest  and  cheapest  mode  where  the 
demand  is  disputable.  In  England,  omitting  to  plead  want 
of  assets  is  implied  evidence  of  assets.  Here  we  have  seen 
that  omitting  to  plead  insolvent  course  is  only  evidence  of 
consent  to  adjustment  in  the  course  of  law ;  but,  if  it  were 
implied  evidence  of  admitting  assets,  it  is  rebutted  by  the 
adoption  and  pendency  of  the  insolvent  course. 

^  The  author's  views  on  this  topic  are  based  upon  a  statute  long  since 
repealed.  The  statute  then  in  force  (Laws,  ed.  1797,  259,  260)  allowed  an 
action  to  be  maintained  against  the  executor  of  an  estate  represented 
insolvent,  in  case  the  executor  or  adiniuistrator,  "  having  objection  to  the 
claim  upon  which  the  action  is  brought,  consents  to  have  the  same  settled 
by  course  of  law,  in  which  case  the  judgment  of  the  court  shall  settle  and 
adjust  such  claim,  and  the  same  shall  be  tinal."  Judgments  so  recovered 
against  the  administrators  were  included  by  the  judge  of  probate  with  the 
demands  allowed  by  the  commissioners  in  decreeing  a  dividend  to  creditors. 

This  statutory  provision  for  the  liquidation  of  claims  against  insolvent 
estates  by  suits  at  law  has  not  been  in  force  since  the  revision  of  the 
Trobate  Laws  in  1822.     See  the  act  of  July  2,  1822,  c.  29,  §  7. 


496  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


When,  therefore,  the  creditor  attempts  to  make  a  use  of 
the  judgment  to  which  he  is  not  entitled,  he  may  be  restrained 
by  showing  the  nature  of  the  judgment,  that  it  was  an  ad- 
justment only,  and  nothing  more.  The  plea  will  set  forth 
the  circumstances  under  which  the  judgment  was  rendered, 
which  will  show  that  it  was  for  liquidation  only  ;  this  will  be 
a  good  bar  to  the  execution,  (a) 

A  construction  that  insolvency  cannot  be  pleaded  to  the 
scire  facias  would  render  altogether  nugatory  the  section 
of  the  insolvent  act  which  provides  that  the  executor  or 
administrator  may  consent  to  have  a  claim  adjusted  at 
law. 

4.  We  will  n'Dw  suppose  that  the  representation  of  insol- 
vency was  made  after  the  original  judgment  was  rendered. 
It  may  be  pleaded,  in  this  case,  to  the  scire  facias} 

Admitting  an  executor  or  administrator  to  proceed  in  the 
insolvent  course  is  admitting  him  to  the  privilege  of  paying 
the  creditors  whose  debts  are  not  yet  paid  pari  passu. 

(a)  This  doctrine,  that  the  executor  or  administrator  may  avail  himself 
of  the  insolvency  proceedings  on  the  scire  facias,  if  it  required  any 
support,  would  receive  it  from  two  clauses  of  similar  import  in  our  testate 
and  intestate  acts  (N.  H.  Laws,  ed.  1797,  238,  250),  which  provide  that 
the  executor  or  administrator,  on  scire  facias,  shall  only  be  liable  to  the 
value  of  waste  committed  by  him  where  it  can  be  ascertained. 

These  clauses,  together  with  that  which  relates  to  the  intermeddling  of 
strangers  with  the  estate  of  a  person  deceased  (248),  show  the  extreme 
care  of  the  legislature  that  no  person  should  be  liable  to  pay  the  debts  of 
the  deceased  beyond  the  assets. 

1  So  held  in  Massachusetts.  Coleman  v.  Hall,  1815,  12  Mass.  570. 
And  a  similar  defence  may  be  made  to  a  scire  facias  on  a  judgment  against 
an  executor  de  son  tort,  if  the  defendant  has  taken  out  administration 
and  the  estate  been  decreed  insolvent  since  the  judgment.  Skillaber  v. 
Wyman,  1818,  15  Mass.  322;  and  see  Olmsted  v.  Clark,  1861,  30  Conn. 
108  (but  compare  Green  v.  Dewit,  1790,  1  Root,  183). 

Newcomb  v.  Goss,  1840,  1  Met.  333,  was  an  action  on  an  administration 
bond;  the  alleged  breach  being  the  non-payment  of  a  judgment  against 
the  administrator.  Held,  no  defence  for  the  administrator  that  he  repre- 
sented the  estate  insolvent,  after  the  rendition  of  the  judgment.  The 
opinion,  although  delivered  by  a  judge  who  sat  in  Coleman  v.  Hall  and 
Shillaber  v.  Wyman,  contains  no  reference  to  those  cases. 


EXTRACTS  •   497 


From  Manuscript  Treatise  on  Probate  Law. 


The  insolvent  proceedings,  like  those  of  bankruptcy,  attach 
on  all  debts  unpaid. 

At  what  time  this  course  may  be  adopted  is  a  distinct 
question  ;  I  speak  of  cases  where  it  is  allowed.  No  injus- 
tice is  done  to  creditors,  no  hardship  except  as  it  relates  to 
costs. 

It  would  be  unjust  to  subject  the  representatives  to  the 
payment  of  debts  beyond  the  assets.  Kames,  Law  Tr.  366, 
371.  Not  adopting  the  insolvent  course  of  administration,  it 
is  true,  is  an  admission  of  assets.  But  it  is  an  admission  only 
while  it  lasts.  The  ground  of  adopting  the  insolvent  course 
after  a  year  from  the  taking  administration  will  always  be  an 
unexpected  failure  of  assets  or  unexpected  debts  appearing. 
Now  the  reason  why  the  executor  or  administrator,  in  England, 
shall  not  plead  want  of  assets  to  the  scire  facias  is  that  he 
could  and  ought  to  have  pleaded  it  before.  Failure  of  assets 
or  new  demands  can  have  no  operation.  Every  demand 
made  upon  him  is  made  on  the  assets  remaining  in  his  hands 
(^enter  maiyis).  What  he  has  not  yet  received  is  not  assets  ; 
he  may  plead  no  assets,  though  he  expects  to  receive  a 
large  sum  in  a  very  short  time  ;  and  the  creditor  may  take 
judgment  of  assets  quando  acciderint,  and  this  judgment  shall 
bind  them. 

5.  It  is  conceived  that  submission  of  a  demand  in  favor 
of  the  deceased  to  arbitration  shall  not  charge  the  execu- 
tor or  administrator  beyond  the  true  debt.  Manuscript,  651, 
1039. 

6.  So  there  can  be  little  doubt  that  the  submission  of  a 
claim  against  the  estate  to  arbitration  will  not  be  here  deemed 
an  admission  of  assets,  as  it  is  not  at  this  day  in  England. 
Manuscript,  1037.     Toll.  364.^ 

1  But  see  3  Williams,  Ex.,  6th  Am.  ed.  1883-1885. 

In  a  previous  passage,  Manuscript,  1037,  1038,  the  author  said,  "  The 
award  shall  be  deemed  only  a  liquidation  of  the  demand  against  the 
estate,  unless  the  executor  or  administrator  has  bound  himself  by  a  per- 
sonal engagement  to  perform  the  award,  or  the  sufficiency  or  insufficiency 
of  the  assets  be  included  in  the  submission." 

32 


498  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


Judgment  on  a  submission  of  an  action  in  court  is  an  award  ; 
the  submission  is  no  admission  of  assets.  The  executor  or 
administrator  neither  binds  himself  personally  to  pay  what 
shall  be  found  due,  nor  do  the  referees  inquire  into  the  state 
of  the  assets. 

If  the  submission  were  made  on  a  scii'e  facias  for  execution 
de  bonis  propriis,  the  question  would  be  whether  the  represent- 
ative had  made  himself  personally  liable  or  not.  So  it  would 
be  where  one  was  sued  for  vitious  intermeddling. 

When  a  submission  is  made  in  a  suit  between  the  represent- 
atives of  the  deceased  and  another,  when  the  estate  is  under 
an  insolvent  course  of  administration,  it  shall  be  deemed  a  con- 
sent that  the  demand  be  settled  or  liquidated  in  this  course, 
and  nothing  further,  (a) 

Where  all  demands  are  submitted,  or  any  demand  not  in 
suit,  and  the  award  is  in  favor  of  the  demand  not  in  suit, 
it  must  be  considered  as  an  award  growing  out  of  the 
submission.  In  such  case,  the  scire  facias  for  execution  de 
bonis  propriis  is  the  first  suit  to  which  the  insolvency  can  be 
pleaded. 

7.  But  if  the  executor  or  administrator  is  sued  upon  the 
award,  or  upon  any  judgment  which  must  be  considered  as  a 
liquidated  demand,  and  does  not  plead  the  insolvency,  he  shall 
not  plead  it  to  the  scire  facias  when  he  might  have  pleaded  it 
before. 

(a)  It  may  be  remarked  that  our  statute  expressly  gives  the  representa- 
tive the  privilege  of  consenting  that  a  demand  brought  against  him  at  law 
should  be  liquidated  at  law,  and  the  statute,  in  that  case,  expressly  limits 
the  effect  of  the  judgment  to  that  of  liquidation  only.  Clearly,  then, 
the  representative,  by  putting  it  upon  the  record  in  express  terms  that  he 
suffers  this  suit  to  proceed  for  liquidation  only,  protects  himself  against 
any  other  effects  flowing  from  the  judgment.  This  suggestion  or  entry, 
when  made,  cannot  be  contradicted  or  pleaded  to  by  the  creditor  or  plain- 
tiff. What  necessity,  then,  that  it  should  be  made  when  the  circumstances 
so  clearly  indicate  the  intention  that  the  suit  goes  on  for  liquidation  only, 
and  when  the  creditor  suffers  and  can  suffer  no  possible  inconvenience 
from  it?  Administering  in  the  insolvent  course,  which  is  necessarily  a 
matter  of  notoriety,  is  equivalent  to  notice.  It  is  giving  notice  to  all  the 
world  that  the  administrator  does  not  admit  assets. 


EXTRACTS  499 


From  Manuscript  Treatise  on  Probate  Law. 


The  case  of  Harris  v.  Hale,  adrnx,  in  the  county  of  Cheshire, 
WHS  lightly  determined  by  this  principle.^ 

In  Graggy.  ^S'^ar^^,  Hillsborough  County,  October  Term,  1798, 
1  Manuscript  Reports,  255,  it  was  determined  that  a  judgment 
in  default  against  an  administratrix,  after  the  insolvent  course  of 
administration  commenced,  did  not  authorize  the  creditor  to 
levy  his  execution  on  the  real  estate  of  the  deceased.  In  this 
case,  therefore,  it  must  have  been  considered  not  as  a  judg- 
ment in  the  common  course,  but  for  liquidation  ;  that  is,  a 
judgment  against  an  insolvent  estate.  For,  if  it  be  considered 
as  a  judgment  against  a  solvent  estate,  the  creditor,  Starke,  in 
that  case,  had  a  right  to  levy  on  the  real  estate,  and  the 
administratrix  had  no  rights  to  sell  the  same  land  to  the  plain- 
tiff, Gragg.2 

^  The  following  statement  of  Harris  v.  Hale  is  found  in  a  note  to 
another  case  in  9  Manuscript  Reports,  228. 

Robert  Harris  v.  Abigail  Hale,  commenced  Rockingham,  April  Terra, 
1794. 

Scire  facias,  setting  forth  judgment,  Harris  v.  Hale,  ad>n^x  of  Nathan 
Hale,  April,  1788;  damages  and  costs,  £718  16a-.  8d.;  pluries  execution 
issued  July  18,  1791,  satisfied  for  £36  Ids.  id.,  only;  nulla  bona  returned 
for  residue;  averment:  sufficient  assets,  waste  committed  by  administra- 
trix, and  prayer  for  execution  de  bonis  propriis. 

Plea:  P'eb.  26,  1782,  estate  represented  insolvent;  proceedings  in  such 
case  usual  were  had  ;  plaintifE  presented  all  his  claims,  £219  16s.  9|rf.  ; 
allowed;  Sept.  15,  1787,  account  of  administration  settled,  and  dividend 
made. 

Replication:  March  10,  1781,  suit  by  plaintiff  against  defendant;  May, 
1781,  plea,  non  assumpsit  of  intestate;  issue  joined;  verdict  and  judgment, 
Superior  Court,  September  Term,  178.5,  damages  £921  2s.  Sd.,  costs 
£9  13.S-.  2d.;  execution  issued  Oct.  21,  1785,  levied  and  satisfied  for 
£221  is.  8d. ;  scire  facias  on  that  judgment  to  revive  it  and  have  execution 
for  balance,  commenced  Aug.  10,  1786;  April  Term,  1788,  default  and 
judgment  against  the  administratrix  ;  last  [execution?]  issued  November, 
179U,  returned  nnlla  bona ;  defendant  estopped  from  pleading  insolvency. 

Of  that  opinion  were  The  Coukt.     Judgment  for  plaintiff. 

2  Where  a  defendant  dies  pending  a  suit,  and  his  administrator  comes 
in  and  defends,  and  the  estate  is  afterwards  decreed  to  be  administered  as 
insolvent,  but  the  administrator  continues  to  defend  the  action  without 
any  plea  or  suggestion  of  the  insolvency,  and  a  regular  judgment  is  ren- 
dered against  him,  if  execution  issue,  and  is  levied  on  one  undivided  share 


500  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


[Right  of  Action  by  Persons  interkstkd  in  the  Estate  against  the 
Executor  or  Administrator,  for  such  Acts  or  Omissions  as 
cannot  be  redressed  by  the  Judge  of  Probate.] 

There  may  be  various  acts  or  omissions  of  executors  or 
administrators,  in  relation  to  the  office  they  sustain,  which 
injure  creditors,  legatees,  heirs,  and  others,  and  which  cannot 
be  redressed  b}'^  the  judge  of  probate.  It  follows  that  these 
may  be  the  foundation  of  a  suit  at  law. 

Where  the  judge  of  probate  can  give  redress,  it  is  more 
beneficial  for  all  parties  that  he  should  do  so,  than  leave  the 
injured  party  to  seek  redress  at  law.  Neglect  to  collect  a 
sperate  debt  may  be  redressed  by  the  judge  of  probate  in 
settling  the  administration  account,  and  therefore  it  would 
seem  that  no  action  can  be  maintained  for  this  maladmin- 
istration, (a) 

[Early  Reciprocal  Legislation,  making  Grant  of  Administration  in 
One  New  England  Colony  effective  in  Another.] 

The  commissioners  of  the  colonies  of  Massachusetts,  New 
Plymouth,  Connecticut,  and  New  Haven,  comprehending  the 
whole   of  what  is  now  Massachusetts,  New  Hampshire,  and 

(a)  Yet  there  is  a  form  of  a  special  declaration  on  this  form  of  action, 
drawn  by  Gridley.     Forms,  Manuscript,  No.  IIL,  159. 

of  the  land  of  the  deceased,  the  levy  gives  the  plaintifE  seisin,  and  title 
sufficient  to  maintain  a  petition  for  partition  against  a  stranger  in  posses- 
sion of  the  other  undivided  shares.  Lyford  v.  Dunn,  1856,  32  N.  W.  81. 
(The  facts  in  that  case  transpired  long  after  the  repeal  of  the  statute 
permitting  suits  to  be  prosecuted  with  the  administrator's  consent  for  the 
purpose  of  liquidating  claims.) 

In  Maine,  if  the  administrator  of  an  estate  represented  insolvent  assume 
the  defence  of  an  action  pending  against  the  intestate  at  the  time  of  his 
death,  and  neglect  to  suggest  the  insolvency  on  the  record  and  to  pray  a 
stay  of  execution,  and  execution  is  regularly  issued,  an  extent  in  due  form 
on  real  estate  of  the  intestate  is  valid.  Wyman  v.  Fox,  1871,  59  Me.  100; 
8.  c.  1867,  55  Me.  523.  Nor  can  a  receiptor  for  personal  property 
attached  question  the  correctness  of  the  judgment  on  account  of  such 
neglect  on  the  part  of  the  administrator.  Thompson  v.  Dyer,  1867, 
55  Me.  99. 
But  see  Thayer  v.  Hollis,  1841,  3  Met.  369. 


EXTRACTS  501 


From  Manuscript  Treatise  on  Probate  Law 


Connecticut,  "for  the  more  speedy  passage  of  justice  in  each 
colony,"  Sept.  19,  1648,  recommended  to  each  of  the  colonies 
to  enact  "  that  the  probate  of  a  will  duly  made  in  one  colony, 
and  certified  therefrom,  be  immediately  accepted  and  allowed 
in  the  other  colonies,  unless  some  just  exception  be  made 
thereto  ;  which  exception  shall  be  forthwith  certified  to  the 
colony  in  which  the  probate  was  made,  that  some  just  course 
may  be  taken  to  gather  in  and  dispose  of  the  estate  without 
delay  or  damage."  2  Haz.  124,  135.  And  that,  where  a 
settled  inhabitant  or  known  planter  die  intestate,  adminis- 
tration be  granted  in  the  colony  of  which  he  was  an  inhabi- 
tant ;  this  administration  to  be  of  force,  for  gathering  in  the 
estate,  in  the  rest  of  the  colonies,  as  in  the  case  of  wills  proved 
and  no  exception  made  ;  if  the  deceased  were  not  a  settled 
inhabitant  or  planter  in  any  of  the  colonies,  administration  to 
be  granted  in  the  colony  in  which  he  died. 

The  legislatures  of  each  of  the  colonies  agreed  to  the  pro- 
posed law,  and  gave  their  assent,  July  31,  1649.     2  Haz.  135. 

This  is  the  foundation  of  the  curtesy  which  prevails  at  this 
day,  of  admitting  executors  and  administrators  to  sue  in  a 
neighboring  State. 

At  the  U.  S.  Circuit  Court,  N.  H.  District,  October  Term, 
1797  or  1798,  PUts^  exr  of  Tyng,  v.  Lovewell,  ejectment  on 
mortgage,  it  was  pleaded  in  abatement  (a)  that  the  plaintiff 
was  not  executor,  his  authority  being  derived  from  a  probate 
in  Massachusetts,  and  not  from  any  probate  court  in  this  State. 
The  plea  was  overruled  by  Judge  Cushing  and  the  district 
judge. 

In  Nicole,  adm'r,  v.  Mumford,  in  Connecticut,  Superior  Court, 
Kirby,  370,  a  similar  decision  was  made  ;  the  Court  observing 
that  it  had  been  the  common  usage  to  admit  administrators 
appointed  in  other  States  to  prosecute  actions  in  that  State. 

In  Pennsylvania,  there  was  an  act  of  assembly,  before  the 
Revolution,  declaring  that  letters  of  administration  granted 
out  of  the  province  were  sufficient  for  the  purpose  of  bringing 
actions.  But,  as  this  act  was  made  whilst  the  province  was 
a  part  of  the  British  Empire,  it  was  then  confined  to  places 
(a)  Qucere  abatement. 


602  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


within  the  king's  dominions,  and  is  held  to  be  repealed  by  the 
necessary  operation  of  the  Revolution.    1  Dall.  456,  457.  (a)  (5) 

In  England,  the  law  seems  clear  that  the  courts  take  no 
notice  of  probates  or  administrations  granted  abroad  ;  that 
when  there  is  any  personal  property  belonging  to  a  person 
deceased  (including  debts  due),  and  which  are  found  in  Eng- 
land at  the  time  of  the  decease,  there  must  be  a  probate  or 
grant  of  administration  in  England.  3  P.  Wms.  371;  Toll. 
47  ;  Mitf.  207. 

It  is  conceived  that  our  law  is  the  same,  with  the  exception 
in  favor  of  iMassachusetts  and  Connecticut  executors  and 
administrators,  and  with  this  difference,  that  there  must  be 
an  administration  granted  on  real  estate  where  the  same  is 
necessary  for  the  payment  of  debts. ^ 

[As  TO  THE  Distinction  between  Tenants  in  Jointure  and  in  Common.] 
The  distinction  between  tenants  in  jointure  and  in  common 
—  that  the  former  are  seised  of  the  whole  in  any  sense  different 
from  the  latter  —  is  certainly  a  metaphysical  one.  Neither 
tenant  (in  jointure  or  in  common)  knoweth  his  own,  and 
both  know  their  proportions.     This  distinction  was  unknown 

(a)  See  1  Binn.  63,  where  it  was  held  that  letters  of  administration, 
granted  under  the  seal  of  a  sister  State,  are  (under  the  act  of  the  Province) 
a  sufficient  authority  to  maintain  an  action  in  Pennsylvania. 

See  the  inconvenience  of  the  rule.     Id.  64. 

See  on  comity,  when  it  ceases.     5  Binn.  381. 

[The  following  addition  to  the  above  note  is  in  a  later  handwriting.] 
It  was  decided  in  Goodwin  v.  Jones,  3  Mass.  514  (see  5  Mass.  77),  that  an  ad- 
ministrator, who  has  received  letters  of  administration  under  the  authority 
of  another  State,  cannot  prosecute  or  defend  an  action  in  Massachusetts. 

{b)  Fenwick  v.  Sears' s  Adinra,  in  error,  1  Cranch,  2.)9.  An  adminis- 
trator, having  had  letters  of  administration  in  Maryland,  before  the  sep- 
aration of  the  District  of  Columbia,  cannot,  after  the  separation,  maintain 
an  action  in  Columbia  till  he  has  obtained  letters  of  administration  in 
Columbia  District. 

1  The  custom  of  allowing  Massachusetts  and  Connecticut  administrators 
to  sue  in  New  Hampshire  was  disf-ontinued  a  few  years  after  the  writing 
of  the  above,  on  the  ground  that  Massachusetts  no  longer  permitted  New 
Hampshire  administrators  to  enjoy  corresponding  privileges  in  Massa- 
chusetts.    Carpenter  v.  Wild,  reported  anle,  365. 


EXTRACTS  503 


From  Manuscript  Treatise  on  Probate  Law. 


in  the  civil  law.  1  Bro.  C.  L.  175,  176.  The  thoughts  of  the 
Roman  jurists  were  not  entangled,  like  those  of  the  early 
English  lawyers,  in  metaphysical  and  abstruse  suV)tilties  ap- 
plied to  landed  estates.  There  is  still  less  foundation  for  the 
distinction  between  joint-tenants  and  coparceners.  It  seems 
the  jus  accrescendi  had  place  in  the  civil  law  between  coheirs. 
It  could  not,  by  the  same  law,  be  created  by  deed  or  inter  vivos. 

It  would  simplify  the  law,  if  the  legislature  should  enact 
that,  in  all  cases  of  plurality  of  owners  of  lands  or  goods,  they 
should  be  tenants  in  common  ;  and  that  there  should  be  no 
survivorship,  except  where  expressly  created.^ 

[Influence  of  Massachusetts  upon  New  Hampshire  Law.] 
During  the  union  with  Massachusetts,  many  of  the  usages 
and  customs  which  now  obtain,  and  which  form  a  part  of  our 
common  law,  were  formed  and  originated. 

Nearly  all  the  acts  of  our  legislature  which  are  now  extant, 
and  which  were  enacted  between  1680  and  1718,  were  copied 
from  the  Massachusetts  acts  ;  and  it  is  highly  reasonable  to 
conclude  that  our  courts,  except  where  acts  of  our  own  as- 
sembly otherwise  directed,  continued  to  be  governed  by  the 
same  principles  and  maxims  which  governed  them  during  the 
union  of  the  two  provinces. 

[Probate  Courts  in  Early  Times.] 
From   this  and  the   other  passages  to  be  met  with  in  the 
ancient  laws  of  Massachusetts  and  Plymouth,  (a)  it  is  plain 

(a)  Hutchinson  says  that  the  Colony  of  Plymouth,  in  criminal  cases, 
took  Massachusetts  for  their  pattern,  but  in  civil  matters  they  professed 
to  take  the  conamon  law  for  their  rule  more  than  was  practised  in  Massa- 
chusetts.    1  Hutch.  191. 

^  "  Sect.  14.  Every  conveyance  or  devise  of  real  estate  made  to  two  or 
more  persons  shall  be  construed  to  create  an  estate  in  common  and  not  in 
joint  tenancy,  unless  it  shall  be  expressed  therein  that  such  estate  is  to  be 
holden  by  the  grantees  or  devisees  as  joint  tenants,  or  to  them  and  the 
survivor  of  them,  or  other  words  are  used,  clearly  expressing  an  intention 
to  create  a  joint  tenancy." 

"  Sect.  15.  Joint  heirs  shall  be  deemed  tenants  in  common."  Gen. 
Laws,  c.  135. 


504  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


that  there  was  a  great  degree  of  uncertainty  in  the  rules  of 
descent,  and  consequently  a  large  measure  of  discretionary 
power  vested  in  the  courts  intrusted  with  the  execution  of 
these  laws.  These  courts,  it  appears,  were  the  county  courts. 
To  these  belonged  the  probate  of  wills,  the  power  of  granting 
administrations,  and  the  settlement  of  estates  testate  and  in- 
testate.    Sull.  373-380,  III.  141  ;  Hutch.  Appendix,  168.  (a) 

It  is  probable  that  the  county  courts  were  only  inferior 
courts  of  probate,  the  governor  and  council  being  the  supreme 
court.     1  Haz.  416  ;  Sull.  132  ;  Hutch.  Appendix,  168. 

The  Massachusetts  charter,  granted  by  William  and  Mary 
in  1691,  authorized  the  governor,  with  the  advice  of  the 
council,  to  nominate  and  appoint  judges,  sheriffs,  justices  of 
the  peace,  and  other  officers  to  the  council  and  courts  of 
justice  belonging.  The  general  court  was  authorized  and 
empowered  to  erect  and  constitute  judicatories,  and  courts 
of  record,  and  other  courts  to  be  holden  in  His  Majesty's  name, 

(a)  The  old  charter  (i.  e.  the  charter  before  1692)  made  no  provision 
on  the  subject  of  probates  and  administrations.  The  power  was  exercised 
by  the  county  courts,  and  by  the  governor  and  assistants.  President 
Dudley  (168G),  as  ordinary,  took  all  matters  of  wills  and  administrations 
into  his  own  hands.  Sir  Ed.  Andros  was  supreme  ordinary,  and  acted 
by  himself  or  his  deputy;  and  all  the  business  was  transacted  at  Boston. 
He  introduced  the  forms  used  in  the  spiritual  courts  in  proving  wills, 
granting  administrations,  &c.,  which  have  been  retained.  Before  that 
time  the  forms  were  loose  and  uncertain.  1  Hutch.  306,  316,  320,  321  n., 
363  n.,  306. 

In  testamentary  matters  the  county  courts  had  jurisdiction.  1  Hutch. 
393,  394.  At  the  beginning,  real  and  personal  estate  was  governed  by  the 
same  rules  :  indeed,  there  were  no  settled  rules  of  distribution  ;  it  was  un- 
equal; at  the  will  of  the  courts.  Sometimes  all  was  settled  upon  the 
widow;  sometimes  the  whole  was  settled  on  the  administrator,  or  some 
relation  who  was  ordered  to  support  the  children  and  pay  them  certain 
portions.  When  general  rules  were  established,  they  were  nearly  like  the 
English  rules  for  distributing  personal  estate,  except  that  the  eldest  son 
had  a  double  share.     1  Hutch.  394. 

The  English  law  of  descent  seems  never  to  have  been  followed. 

The  widow  seems  to  have  been  entitled  to  dower  as  a  matter  of  right, 
and  it  was  not  unusual  to  allow  her  something  more.     1  Hutch.  394. 

As  to  estates-tail,  the  English  law  was  adopted  without  any  altera- 
tion. 


EXTRACTS  505 


From  Manuscript  Treatise  on  Probate  Law. 


for  the  determination  of  all  causes  civil  and  criminal.  The 
next  clause  declares  that  the  governor,  with  the  council  or 
assistants,  may  do,  execute,  and  perform  all  that  is  necessary 
for  the  probate  of  wills,  and  granting  administrations  touching 
any  interests  or  estates  which  any  person  shall  have  within 
the  province. 

Previous  to  the  grant  of  this  charter  (in  1686)  it  appears 
that  a  probate  court  was  holden  at  Boston  by  the  president 
of  New  England  ;  and  in  the  other  provinces  which  then 
composed  New  England,  and  in  the  remote  counties  of  Massa- 
chusetts, the  court  was  holden  by  a  judge  and  clerk  appointed 
by  the  president. 

No  act  of  the  legislature  of  Massachusetts,  or  of  this  State, 
creating  the  office  of  judge  or  register  of  probate,  before  the 
late  Revolution,  appears  in  any  records  to  which  I  have  had 
access,  and  I  presume  none  such  ever  existed.  The  Massa- 
chusetts act  of  1692,  for  the  settlement  and  distribution  of 
the  estates  of  intestates,  is  the  first  that  makes  mention  of  a 
judge  of  probate.  It  is  probable  that  the  governor  and  coun- 
cil, as  supreme  court  of  probate,  appointed  a  judge,  and  dele- 
gated to  him  the  powers  conferred  by  the  charter  on  them, 
reserving  to  themselves  the  supreme  appellate  jurisdiction. 

[Extent  and  Origin  of  Guardianship  by  Nature.] 

The  subjects  of  guardianship  by  nature  are  said  to  be  not 
all  the  children,  but  only  the  heir  apparent.    2  Fonbl.  241.  (A) 

That  the  father  should  be  the  guardian  of  a  child  who,  on 
his  death,  will  be  his  heir,  and  not  of  one  who  will  inherit 
nothing  from  him  but  the  fruits  of  a  good  education  and  kind 
instructions,  seems  a  strange  doctrine,  unless  we  should  sup- 
pose that  this  care  of  the  common  law  was  founded  on  the 
idea  that  the  heir,  by  reason  of  his  expectations  as  to  property, 
which  have  a  corrupting  influence  over  young  and  tender 
minds,  stood  in  the  greatest  need  of  a  guardian. 

We  are  told  by  Chief  Justice  Holt  that  the  reason  why 
the  father  is  not  guardian  by  nature  of  his  other  children  is, 
because  they  cannot  inherit  any  thing  from  him.  Carth.  386. 
This,  upon  general  principles,  is  no  reason  at  all ;  and  yet  it 


506  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


may  be  a  sound  legal  one.  The  doctrine  probabl}'  originated 
in  this  way.  The  guardianship  in"  chivalry  was  odious. 
Swinburne,  212.  To  suffer  the  lord  to  wrest  the  infant  from 
the  father;  enjoy  his  estate,  affording  a  bare  maintenance; 
selling  his  marriage,  —  was  intolerable.  An  exception  was  at 
length  admitted  in  the  case  of  the  father.  Com.  Dig.  Guar- 
dian, C.  He  was  considered  as  guardian  of  the  person  of 
his  heir  against  the  lord,  who  was  guardian  by  tenure.  By 
way  of  opposition,  the  father  was  said  to  be  guardian  by 
nature ;  but  neither  the  phrase  nor  the  office  was  extended 
beyond  the  occasion  for  it.  3  G.  Bacon,  404,  n.  Personal 
property  was  trifling  ;  the  other  children  generally  had  none. 
The  guardianship  for  nurture  arose  in  the  same  way.  It  was 
the  gradual  encroachment  of  nature  and  humanity  on  the 
feudal  system. 

[Testamentary  Guardians.] 

This  act  [12  Charles  II.  c.  24]  gives  the  father  a  power 
over  his  children,  to  be  exercised  by  a  person  of  his  nomina- 
tion after  his  death,  greater  than  that  which  he  himself  pos- 
sesses during  his  life.     1  Blackst.  453  ;  1  Bro.  C.  L.  88.  (a) 

[Time  of  Majority.     Custom  of  London.] 
It  is  a  vulgar  opinion  that  males  are  of  full  age  at  twenty- 
one,  and  females  at  eighteen.     This  has  its  origin  in  the  custom 
of  London,  by  which  males  are  out  of  ward  at  twenty-one, 
and  females  at  eighteen.     Com.  Dig.  Guardian,  g.  i.^ 

[Testamentary  Guardians.] 

The  English  guardianship  for  nurture  seems  applicable  here  ; 
but  that  by  nature  must  here  embrace  all  the  children,  because 

(a)  And  yet  we  meet  with  such  expressions  as  these  :  The  authority  of 
the  testamentary  guardian  is  a  continuation  of  the  paternal  authority. 
Such  a  guardian  is  in  loco  patris.      2  Eq.  Cas.  Abr.  486. 

'  In  another  part  of  the  manuscript,  it  is  said  that  the  custom  of  Lon- 
don "  certainly  had  some  influence  on  our  legislators  and  judges  in  early 
times." 


EXTRACTS  507 


From  Manuscript  Treatise  on  Probate  Law. 


all  are  equally  heirs  a})i)arent.  It  is  a  matter  of  more  diffi- 
culty to  determine  as  to  the  testamentary  guardians  au- 
thorized by  the  statutes  of  Philip  and  Mary,  and  Charles  the 
Second.  The  latter  seems  to  have  been  adopted  and  practised 
upon.' 

[In  a  subsequent  part  of  the  treatise  it  is  said  :]  The  father 
may,  by  his  will,  appoint  a  guardian  to  his  children,  with  all 
the  powers  and  privileges  of  the  English  testamentary  guar- 
dian.    Co.  Lit.  88  5,  n.  14,  15. 

It  is  conceived  that  we  have  adopted  the  English  statute  of 
Chailes  the  Second.^ 

[Guardians  of  the  Estate,  who   have  not  the   Custody  of  the 

Person.] 

Notwithstanding  what  has  been  said  in  the  preceding  article, 
it  is  conceived  that  there  may  be  guardians  of  the  estate  who 
have  not  the  custody  of  the  person.  This  will  happen  where 
the  minor  is  out  of  the  State ;  or  where  there  is  a  father  or 
mother  capable  of  discharging  the  duty  of  a  parent,  but  not 
qualified  to  take  care  of  the  estate.  The  offices  may  be  sepa- 
rated, though  they  seldom  are  so.^ 

[Appointment  of  Guardians  over  Non-compos. 1 

By  the  act  of  1776,  it  was  necessary  that  ^he  selectmen 
should  find  the  insanity. 

By  the  Massachusetts  act,  the  selectmen  must  find  the  person 
incapable  of  taking  care  of  himself. 

1  [By  a  reference  to  another  part  of  the  manuscript,  it  would  seem  that 
a  guardian  was  appointed  by  the  father,  by  will,  in  the  case  of  N.  Meserve, 
in  1719  or  1758;  also,  that  in  a  will  of  the  year  1708  is  the  clause,  "  I 
give  my  son  to  A.  B.,"  &c.] 

2  So  held  in  Cnpp  v.  Copp,  1850,  20  N.  H.  284,  and  in  Balch  v.  Smilh, 
1841,  12  N.  H.  437. 

8  In  another  part  of  the  manuscript,  it  is  said,  "  The  judge,  doubtless, 
may  appoint  a  guardian  of  the  person  and  another  of  the  estate.  But  it 
is  usual  to  commit  both  to  the  same  person.  Laws,  202.  263."  To  this 
passage  there  is  the  following  note:  "  On  inspecting  the  probate  records, 
I  find  no  instance  of  a  guardian  appointed  for  the  person  and  another  for 
the  estate.     J.  S." 


508  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 

It  seems  by  the  present  law,  N.  H.  Laws,  ed.  1797,  262, 
that  the  reference  to  the  selectmen  is  a  matter  which  rests  in 
the  discretion  of  the  judge  of  probate  ;  and  that  he  may  refer 
it  to  them  or  not.  He  is  not  bound  by  their  opinion  either 
way.  It  is  only  a  means  of  procuring  information  of  the  con- 
dition of  the  party.^ 

[Proceedings  as  to  Persons  suspected  of  Embezzlement.     N.  H. 
Laws,  ed.  of  1797,  263.] 

With  all  this  verbiage  the  simple  meaning  is,  that  the  judge 
of  probate  may  compel  persons  suspected  of  embezzling  the 
property  of  a  non  compos,  under  certain  circumstances,  to 
answer  interrogatories  which  may  be  used  in  a  suit  at  common 
law,  but  which  cannot  be  made  the  foundation  of  any  further 
proceeding  in  the  probate  court.^ 

[Whether  Real  Estate  may  be  sold  to  support  a  Child  under 
Seven  Years  of  Age.] 

The  estate  of  an  intestate  being  subject  to  the  support  of 
each  child  under  seven  years  of  age  (N.  H.  Laws,  ed.  1797, 
245),  the  personal  should  be  first  applied,  then  the  income  of 
the  real,  and,  in  defect  of  these,  the  real  may  be  decreed  to  be 
sold  for  this  purpose,  though  there  is  no  express  provision  on 
the  subject,  (a) 

(a)  The  act  subjects  the  estate  to  this  burden.  There  must  be  some 
way  of  making  it  liable;  none  so  effectual  as  that  of  allowing  the  judge  of 


1  In  H V.  S ,  1827,  4  N.  H.  60,  it  was  held  that,  under  the  later 

statute  of  July  2,  1822,  the  judge  of  probate  could  not  appoint  a  guardian 
over  a  non  compos,  unless  the  selectmen  made  return  of  the  fact  of  insanity. 
In  the  argument  of  counsel,  4  N.  H.  63,  will  be  found  extracts  from  the 
statutes  of  1776,  1791,  and  1822.  The  change  of  phraseology,  in  the 
statute  of  1791,  from  that  of  1776,  is  very  marked,  and  may,  perhaps,  jus- 
tify the  author's  opinion  that,  under  the  statute  of  1791,  the  judge  is  not 
bound  by  the  opinion  of  the  inquisitors  "  either  way." 

The  present  statute  on  this  subject,  Gen.  Laws,  c.  186,  §§  1  and  2,  being 
a  substantial  re-enactment  of  the  statute  of  1822,  must,  of  course,  receive 
the  same  construction  that  was  given  to  that  statute  in  H v.  S . 

2  See  Wood  v.  Weld,  reported  ante,  367. 


EXTRACTS  509 


From  Manu8tTipt  Treatise  on  Probate  Law. 


The  judge  may  doubtless  consider  the  personal  estate  as  fii-st 
applied  to  this  object,  and  order  the  sale  of  the  real  to  pay 
debts.  This  marshalling  of  the  assets,  first  applying  the  per- 
sonal estate  to  payment  of  charge;>,  secondly,  maintenance  of 
children  under  seven  (or  reversing  this  order),  will  bring  the 
sale  of  real  estate  for  payment  of  debts  within  the  letter  of 
the  law. 

[License   to   sell   Rkal   Estate,    when   Granted,    when    Denied. 
Liability  of   Administrator.] 

Where  it  becomes  necessary,  in  the  course  of  a  just  and 
faithful  administration,  to  sell  real  estate,  the  executor  or 
administrator  may  not  only  apply  for  license,  and  the  judge 
grant  it,  but  his  not  applying  is  neglect  of  duty,  for  which  he 
will  be  answerable  to  the  injured  party  de  bonis  propriis. 

This  was  determined  in  Brattle  v.  Willard,  U.  S.  Circuit  Court, 
New  Hampshire,  May  Term,  1798  [reported  ante,  in  connec- 
tion with  New  Hampshire  Strafford  Bank  v.  Mellen']. 

Where  the  executor  or  administrator  shall  have  wasted  the 
proper  fund  for  the  payment  of  debts  and  legacies,  and  applies 
for  license  to  sell  real  estate  for  these  purposes,  it  is  conceived 
that  the  judge  may,  and  ought,  to  refuse  license,  (a)  ^  The 
effect  of  this  refusal  will  be  that  the  executor  or  administrator 
will  be  answerable  de  bonis  propriis.  And  it  will  always  be 
in  the  power  of  the  judge  to  ascertain  the  waste  by  directing 
a  settlement  of  the  administration  account,  and  refusing  to 
grant  license  till  such  settlement  is  made.  The  necessity  of 
selling  can  in  no  case  be  accurately,  and  with  certainty,  ascer- 
tained, till  the  administration  account  is  settled. 

probate  to  order  it  to  be  sold,  and  the  administrator  to  appropriate  the 
proceeds  to  this  object. 

[In  another  passage,  the  author  said  :  "  There  can  be  no  doubt  but 
that  the  maintenance  of  children  under  seven  is  a  charge  on  the  real  estate 
as  well  as  the  personal  .  .  .  there  does  not  seem  to  be  any  express  au- 
thority given  to  the  judge  to  authorize  a  sale  for  this  object,  though  it  has 
always  been  done  when  necessary."] 

(a)  See  Ex  parte  Allen,  Petitioner,  15  Mass.  58. 

1  TUton  V.  TiUon,  1860,  41  N.  H.  479. 


510  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


But  where  the  fund  was  originally  insufficient,  or  has  be- 
come so  without  any  fault  of  the  representative,  the  judge 
may  grant  license  to  sell  real  estate  set  off  to  an  heir,  specifi- 
cally devised,  &c.  But  the  sale  ought  to  be  so  managed  and 
ordered,  and  the  proceeds  so  appropriated,  that  the  burden 
shall  be  borne  by  those  who  ought  to  bear  it. 

License  granted  to  sell  when  there  is  no  necessity  for  it,  or 
to  sell  that  which  ought  not  to  be  sold,  will  not  excuse  the 
executor  or  administrator  from  being  answerable  for  mal- 
administration ;  but  the  title  will  be  good  to  the  purchaser. 

[Sale  of  Real  Estate  under  License  fkom  Probate  Court  Valid 

ALTHOUGH    THERE    WAS    IN    FaCT   NO    NECESSITY    FOR    A    SaLE.] 

It  is  very  clear  that  selling  to  pay  debts  when  there  are  no 
debts,  or  selling  real  estate  when  the  personal  is  sufficient,  or 
selling  that  specifically  devised,  and  which  ought  not  to  be 
sold,  will  not  vitiate  the  sale.^ 

^  If  the  petition  for  license  contained  the  proper  averments,  the  decree 
granting  leave  to  sell  cannot  be  collaterally  impeached,  nor  the  title  of  the 
purchaser  devested,  by  proof  that  there  were  no  debts,  or  that  the  assets 
•were  sufficient.  HalL  v.  Wood7nan,  1870,  49  N.  H.  295,  304 ;  Gordon  v. 
Gordon,  1875,  55  N.  H.  399,  and  cases  cited.  Also,  Atkins  v.  Kinnan, 
1838,  20  \\'end.  241  ;  Graham  v.  Linden,  1872,  50  N.  Y.  547,  550  ;  Sheldon 
v.  Bush,  1803,  1  Day,  170;  McCown's  Ex'rs  v.  Foster,  1870,  33  Tex.  241 
(but  see  Withers  v.  Patterson,  1864,  27  Tex.  49)  ;  Wolf  v.  Robinson,  1855, 
20  Mo.  459;  Grayson  v.  Weddle,  187G,  63  Mo.  523,  536;  Stow  v.  Kimball, 
1862,  28  111.  93;  Iverson  v.  Loberg,  1861,  26  111.  179;  Moore  v.  Neil,  1866, 
39  111.  256;  Myer  v.  McDouyal,  1868,  47  111.  278;  Breese,  J.,  in  Hobson 
V.  Ewan,  1871,  62  111.  146,  154,  155  (and  see  Sheldon,  J.,  in  Bowen  v. 
Bond,  1875,  80  111.  351,  358-360);  Boy4  v.  Blankman,  1865,  29  Cal.  19,  41- 
43;  Field,  C.  J.,  in  Sprigys's  Estate,  1862,  20  Cal.  121,  124,  125;  Wyatt's 
Adm'r  v.  Steele,  1855,  26  Ala.  639;  Doe  v.  Roe,  1860,  30  Ga.  961;  and  see 
McDade  v.  Burch,  1849,  7  Ga.  559  ;  Ilsley,  J.,  in  Sizemore  v.  Wedge,  1868, 
20  La.  Ann.  124,  125;  Redfield,  C.  J.,  in  Doolittle  v.  Bolton,  1856,28  Vt. 
819,  823;  Freeman  on  Void  Judicial  Sales,  §  14. 

Contra,  in  Massachusetts.  Heath  v.  Wells,  1827,  5  Pick.  140;  Thompson 
v.  Brown,  1819,  16  Mass.  172  (but  see  criticism  in  editor's  note,  p.  181); 
Tarbell  v.  Parker,  1871,  106  Mass.  347  ;  Wells,  J.,  in  Aiken  v.  Morse, 
1870,  104  Mass.  277,  280.  But  parties  interested  in,  or  affected  by,  a  sale 
under  a  void  license  may  now  apply  to  a  court  of  equity,  where  the  sale 
may  be  coufirmed  or  set  aside,  in  whole  or  in  part.     Mass.  Stat,  of  1873, 


EXTRACTS  511 


From  Manuscript  Treatise  on  Probate  Law. 


[Whether    an    "  Executor    Plaintiff,"  who   fails    in    hls    Suit,    is 
Liable  for  Costs.] 

I,  English  Laiv.  Executor  plaintiff,  vviiere  he  must  sue  as 
executor,  that  is,  on  contracts  made  with  the  deceased,  or  for 
goods  taken  away  in  his  lifetime,  shall  pay  no  costs. 

But  if  the  executor  or  administrator  sue  in  his  representa- 
tive character,  when  he  might  sue  in  his  private  capacity,  —  for 
example,  for  goods  taken  from  his  possession  actual  or  con- 
structive,—  he  shall  receive  and  pay  costs  as  other  persons. 

It  is  held  that  an  executor  or  administrator  is  liable  to  pay 
the  costs  of  a  non  pros.,  though  not  of  a  nonsuit.  The  reason 
for  the  distinction  is,  that  the  former  arises  from  a  fault  in  the 
representative,  the  latter  from  ignorance  of  the  state  of  the 
demand. 

II.  Our  Law  on  the  Subject.  .  .  .  The  English  law  on  this 
subject,  it  is  conceived,  has  never  been  admitted  here.  The 
reasons  upon  which  it  is  founded  are  by  no  means  satisfactory. 

The  executor  and  administrator  are  mere  trustees  for  the 
creditors,  heirs,  and  legatees.  It  is  they  who  pay  the  costs, 
anti  they  are  bound,  like  others,  to  know  their  rights.  When 
they  prosecute  unjust  claims,  the  defendant  is  vexed  and  put 
to  costs.     Why  should  not  he  be  indemnified?     Costs  are  not 

c.  253,  §  3.     See  Ames,  J.,  in  Chapin  v.  Waters,   1872,   110  Mass.   195, 
198. 

The  purchaser's  title  has  been  held  invalid  where  the  petition  for  license 
to  sell  was  detective  on  its  face,  not  containing  the  averments  necessary 
to  give  jurisdiction:  Haynes  v.  Meeks,  lb02,  20  Cal.  288  ;  where  the  peti- 
tion did  not  aver  any  debts  of  the  testator  :  Torrance  v.  Torrance,  1866, 
53  Pa.  St.  505;  where  no  valid  ground  was  stated  in  the  petition  or  decree  : 
Wilson  v.  Armstrong,  1868,  42  Ala.  168  (conapare,  however.  Doe  v.  Roe, 
1860,  30  Ga.  961) ;  where  it  appeared  from  the  records  of  the  probate 
court  that  there  were  no  debts,  and  that  the  sale  was  made  to  pay  costs  of 
administration:  Farrarv.  Dean,  1856,  24  Mo.  16;  where  there  was  noth- 
ing on  record  to  show  proper  findings  of  fact:  Clapp  v.  Beardsley,  1826, 
1  Aik.  168;  where  the  petition  for  license  was  not  within  the  time  limited 
by  statute  for  making  such  request  :  Slocum  v.  English,  1875,  62  N.  Y. 
494. 


612  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


now  considered  as  a  punishment,  but  as  a  compensation  for 
a  civil  injury  ;  and  the  injury  is  not  the  less,  in  a  civil  view, 
because  it  is  done  by  a  trustee,  or  because  the  real  party  is 
ignorant.     Idiots  are  compelled  to  redress  civil  injuries. 

Where  an  executor  or  administrator  of  an  insolvent  estate 
is  sued,  and  judgment  de  bonis  testatoris  vel  intestati,  it  is  con- 
ceived the  remedy  is  the  same  for  the  costs  as  for  the  debt. 

Where  he  is  plaintiff,  he  ought  to  pay  costs.  The  estate 
may  be  so  circumstanced  that  the  defendant  may  have  no 
remedy.^ 

[Extracts  from  Probate  Records.  As  to  Seals  on  Wills.] 
Formalities  of  wills  of  real  estate.  Sealing  —  generally 
sealed.  In  a  few  instances  the  mark  O  of  seal,  instead  of 
one,  — 1723,  1728,  1745,  1750,  1760,  1764,  1771,  and  two 
instances  of  this  in  1752,  1766.  In  the  decree  of  probate,  this 
is  called  sealing. 

Instances  of  wills  proved  not  being  sealed  may  be  found  in 
files  of  the  years  1660,  1667,  1686,  1718,  1719,  1723,  1725, 
1757,  1759. 

[Extracts  from  Probate  Records.     Origin  of  the  Office  of  Judge 
OF  Probate.     Early  Forms.] 

Previous  to  1680,  the  county  courts  discharged  the  duties 
now  performed  by  the  judge  of  probate.  They  granted  letters 
of  administration ;  took  security  by  way  of  recognizance  to 

1  Where  the  cause  of  action  is  alleged  to  have  accrued  after  the  death 
of  the  intestate,  and  the  administrator  might  sue  in  his  own  right,  judg- 
ment for  costs  may  be  entered  against  him  de  bonis  propriis.  Moullon  v. 
Wendell,  1858,  37  N.  H.  406;  Keniston  v.  Little,  1855,  30  N.  H.  318. 

But  where  the  administrator  sues  for  a  cause  of  action  purporting  to 
have  arisen  in  the  hfetime  of  the  intestate,  a  judgment  for  the  defendant 
is  to  be  entered  against  the  goods  and  estate  of  the  intestate.  Pillsbury  v. 
Hubbard y  1839,  10  N.  H.  224.  And  upon  scire  facias,  brought  after  a 
return  of  nulla  bona,  an  execution  de  bonis  propriis  will  not  be  awarded 
against  the  administrator,  if  he  commenced  the  suit  in  good  faith,  with  a 
reasonable  expectation  of  recovering,  although,  at  the  time  of  suit  brought, 
he  had  administered  all  the  estate,  and  settled  his  account,  and  had  no 
balance  in  his  hands  to  be  distributed.  Folsom  v.  Blaisdell,  1859,  38  N.  H. 
100. 


EXTRACTS  613 


From  Manuscript  Treatise  on  Probate  Law. 


tlie  county  treasurer ;  approved  and  allowed  wills ;  received 
inventories,  and  settled  estates.  [Records  of]  1654,  1656, 
1660,  1661,  1667,  1674. 

For  the  convenience  of  the  people  there  were  commission- 
ers, consisting,  it  is  apprehended,  of  three  persons,  clothed 
(to  adopt  the  language  of  the  day)  with  magistratical  powers 
for  the  county.  The  clerk  of  the  county  court  was  generally 
one.  They  granted  power  of  administration,  warrants  of 
appraisement ;  swore  witnesses  to  wills ;  and  made  return  of 
their  doings  to  the  county  court,  where  they  were  confirmed 
or  disallowed.     1660,  1662",  1669,  1674,  1675,  1677. 

Mention  is  made,  in  the  records  of  the  day,  of  the  court  of 
associates,  as  having  powers  of  probate  concurrent  with  the 
county  court.     1660,  1669,  1670. 

Between  1680  and  1694,  there  does  not  appear  to  have  been 
any  regular,  settled  course  of  proceediug. 

Probate  powers  were  generally,  during  that  period,  per- 
formed by  the  supreme  executive  magistrate,  whether  lieu- 
tenant-governor, or  president  of  the  council ;  sometimes  by 
two  of  the  council  ;  oaths  and  security  sometimes  taken  be- 
fore a  councillor  or  justice  of  the  peace,  (fee. 

Ed.  Cranfield,  lieutenant-governor  and  commander-in-chief, 
exercised  these  powers  in  1681,  1682,  1683. 

1686,  Walter  Barefoot,  deputy  governor. 

In  1686,  two  wills  appear,  witnesses  sworn  before  Rd.  Wal- 
dron,  attested  by  Elias  Stileman,  cler. 

In  1687,  1688,  the  court  of  pleas  acted  as  judge  of  probate. 

In  1688,  1689,  1690,  1691,  1692,  Jno.  Hinckes,  president  of 
the  council,  sometimes  styled  president  and  commander-in- 
chief  in  and  over  the  province  of  New  Hampshire  in  New 
England,  discharged  the  duties  of  judge  of  probate. 

Oct.  8,  1691,  the  witnesses  to  a  will  were  sworn  before 
two  of  the  council,  attested  by  John  Pickering,  recorder. 

In  1692,  a  letter  of  administration  appears  under  the  province 
seal;  the  recognizance,  for  faithful  administration,  attested  by 
Tho.  Davis,  secretary. 

In  1693,  mention  is  made  of  the  office  for  the  probate  of 
wills  and  granting  administrations. 

83 


614  EXTRACTS 


from  Manuscript  Treatise  on  Probate  Law. 


In  1093,  probate  proceedings  were  by  lieutenant-governor 
Usher,  under  the  province  seal,  attested  by  the  secretary. 

In  1694,  the  offices  of  judge  and  register  of  probate  appear 
to  have  been  established. 

Judges.  Registers. 

1694.  Thomas  Packer,  (a)  William  Redford.  (6) 

1697.  Nath'l  Fryer.  Frascis  Tucker.  (6) 

1700.  Lt.-Gov.  Partridge,  (c)  Charles  Story,  (b) 

1703.  Joseph  Smith. 

1709.  Richard  Waldron. 

1730.  Be.vj.  Gamblix.  [1]  1715.  Richard  Gerrish. 

1737.  Richard  Waldron.  1718.  Bexj.  Gamblix.  [?] 

1742.  AxDREw  WiGGix.  1730.  Johx  Pexhallow. 

1756.  Richard  Wibird.  1735.  William  Parker. 

1765.  Johx  Wextworth. 

1773.  Nov.  John  Sherburxe. 

1776.  Feb.  28.  Phillips  White.  1776.    Feb.    William  Parker,  Jr. 

In  1737,  Ephraim  Dennet  was  appointed  special  judge  of 
probate  of  wills,  and  granting  letters  of  administration,  »S:c., 
for  settling  the  estates  of  John  and  Sam.  Penhallow. 

Before  1680,  security  was  taken  from  administrators,  &c., 
to  the  county  treasurer,  by  way  of  recognizance  ;  ((7)  between 
1680  and  1694,  it  was  taken  to  the  king ;  to  return  an  in- 
ventory where  not  already  done,  and  to  administer  according 
to  law.  These  were  the  only  conditions  mentioned.  Some 
such  recognizances  appear  in  1694.  But  the  practice  was 
soon  adopted  of  taking  bonds  to  the  judge  of  probate,  with 
similar  conditions. 

(a)  In  November,  1794  [169-t].  Packer  is  styled  Ordinary  of  the  Province 
of  New  Hampshire;  and  in  1717,  in  one  instance,  the  probate  court  is 
styled  the  Prerogative  Court  of  New  Hampshire. 

(6)  W.  Redford  is  sometimes  styled  D.  Secretary;  Tucker  and  Story, 
Secretaries. 

(c)  Partridge  is  sometimes  styled  Lt.  Gov.,  sometimes  Judge  of  Probate, 
sometimes  both. 

(c/)  lt)79.  In  the  case  of  Samuel  Willey,  the  estate  was  delivered  to 
Thomas  Willey.  father  of  the  deceased ;  and  bond  taken  to  the  county 
treasurer,  in  £100,  for  the  due  satisfaction  of  whatever  any  of  Samuel 
Willey 's  creditors  shall  make  legally  appear.  It  does  not  appear  that  he 
was  appointed  administrator. 


EXTRACTS  515 

From  Mannsaipt  Treatise  on  Probate  Law. 

Widle  the  probate  business  was  done  by  the  courts  of 
common  law,  minutes  were  made  of  the  grant  of  adminis- 
trations, <S:c.,  on  the  records.  When  the  executive  magis- 
trates assumed  the  probate  jurisdiction,  irregular  and  informal 
commissions  and  warrants  were  issued.  These  were  adopted 
bv  the  first  judges  of  probate  :  but  Mr.  Story  appears,  about 
this  time.  1T0C>-1707,  to  have  adopted  the  form  of  letters  of 
administration  and  administration  bonds  now  in  use.  And 
the  form  of  a  probate  was  substantially  the  same  as  at  this 
time. 

[Extracts  from  Pbobate  Records.    Proof  of  Wills.     Caveat.j 

It  was  usual,  where  the  will  was  intended  to  be  disputed, 
to  file  a  caveat.  It  seems  notice  was  not  given,  except  where 
caveat  was  filed,  1667.  (a)  Caveats  were  sometimes  filed 
after  the  will  was  presented  for  probate,  in  which  case  they 
stated  the  grounds  of  objection,  such  as  insanity,  &c. 

[Extracts  from  Probate  Recori>5.    Proof  of  Wills.     Record  of 
THE  Proceedings.] 

In  early  times,  minutes  were  made  of  tbe  probate,  the  testi- 
mony of  the  witnesses  sworn,  &c. :  and  of  the  committing  of 
the  administration.  The  clerk  usually  made  minutes  on  the 
will,  afterwards  transcribed  into  the  records- 
Bet  ween  16S0  and  169-1,  we  find  minutes  made  on  the  wiU 
as  before,  and  something  like  a  formal  probate  under  seal. 

After  169-1.  the  practice  continued  of  making  a  minute,  on 
the  will,  of  the  testimony  of  the  witnesses,  attested  by  the 
judge,  and  sometimes  by  the  register,  and  sometimes  unat- 
tested ;  and  regular  probates  now  began  to  be  introduced, 
according  to  the  form  then  used  in  Massachusetts,  and  which 
continue  there  till  this  day. 

About  1750,  the  form  of  probate  now  used  was  introduced, 
which  differed  from  the  one  then  in  use,  in  setting  out  the 
testimony  in  the  probate.  Less  attention  was  afterwards  paid 
to  the  minute  of  swearing  the  witnesses,  and  it  was  usually  in 

(a)  The  caveat  requested  notice. 


616  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


this  form :  "  Proved  by  the  oaths  of  A.  B.,  &c.,  in  common 
form."     1760,  1771. 

In  disputed  cases  a  more  full  statement  was  made. 

The  probate  spoken  of  means  the  same  thing  as  letters  testa- 
mentary annexed  to  a  copy  of  the  will. 

[Extracts  from  Probate  Records.      Singular  Dkvises  and  Clauses 

IN  Wills.] 

A.  B.  devised  certain  real  estate  to  that  one  of  his  sons  the 
mother  should  think  the  most  worthy,  he  paying  certain  sums 
to  the  other  children  :  1697.  The  mother  appeared  before  the 
judge  of  probate,  and  declared  she  thought  her  son  Samuel 
the  most  worthy  :  1707. 

1713.  Will  of  John  Varney  :  "  I  also  give  my  brother  Eben- 
ezer  full  power  to  get  the  will  copied,  if  any  wise  man  sees  fit; 
and,  if  there  be  any  thing  amiss,  to  rectify  it."  Approved  and 
allowed. 

1744.  Will  of  a  soldier  going  to  Cape  Breton  :  "  I  will  that 
A.  B.  take  care  of  my  farm  till  my  return  from  Cape  Breton," 

&c. 

[Extracts  from  Probate  Records.     Overseers.] 

1680.  Overseers  appointed ;  one  of  the  executors  named  an 
overseer,  with  others ;  the  will  directs  that  executors  may  do 
certain  things,  with  the  approbation  of  the  overseers  ;  they  are 
constituted  arbitrators. 

In  a  will  made  in  1745,  overseers  are  named  to  advise  and 
assist  the  executors  and  settle  disputes. 

As  far  back  as  1660,  overseers  were  appointed. 

[Extracts  from  Probate  Records.     Mode  of  expressing  Proportions 
OF  Land  Divided.] 

1718.  On  settlement  of  administration  account,  decree  that 
68^  acres  remain  to  be  divided  among  eight  children,  in  nine 
shares,  each  share  6i  acres ;  (a)  places  where  to  be  laid  off 
designated  ;  to  refund  in  case  of  debts. 

(«)  This  probably  means  ^  or  ^^^V,  of  the  whole.  This  mode  of 
expressing  the  proportions  of  land  common  in  early  times. 

See  will  of  Robert  Moore,  proved  in  1779.     He  gives  his  daughter, 


EXTRACTS  517 


From  Manuscript  Treatise  on  Probate  Law. 


[Extracts  from  Probate  Records.     Extent  of  Administration.] 

It  is  conceived  that  the  administration,  previous  to  1680, 
extended  to  all  the  estate  of  the  deceased,  (a) 

Between  1680  and  1692,  the  administration  was  generally 
granted  in  the  English  form,  (6)  of  the  goods,  chattels,  and 
credits,  (c) 

The  present  form  of  administration,  which  is  of  goods,  chat- 
tels, rights,  and  credits,  was  introduced  by  Charles  Story, 
about  1700. 

[Extracts   from  Probate  Records.      Caveat  against  Grant  of 
Administration.] 

It  has  been  at  all  times  usual  to  put  in  caveats  against  the 
grant  of  administration  to  particular  persons.  The  person 
putting  in  the  caveat  usually  requested,  and  had,  notice  of  ap- 
plication for  administration. 

[Extracts  from  Probate  Records.     Oral  Applications  for  Adminis- 
tration.] 

Applications  for  letters  of  administration  were  usually  made 
ore  tenus,  and  not  in  writing. 

Martha  Holmes,  100  acres,  more  or  less,  of  the  150  acre  lot  No.  38  in  New 
Boston.  He  had  before  given  William  50  acres  ofE  the  east  end  of  the 
same  lot.     Here  100  acres  means  the  residue. 

(a)  See  files:  administration  of  Capt.  Sealey's  estate,  1670;  Richard 
Seaward's  estate,  1668;  James  Drew's  estate,  1671. 

1677,  it  was  thus  expressed,  "  Housing,  lands,  and  estate." 

(6)  Exceptions. 

1692,  administration  of  the  estate,  real  and  personal,  of  John  Folsom 
granted  to  Samuel  Folsom ;  1693,  of  the  estate  of  James  Nute  ;  1694, 
of  all  and  singular  the  estate  of  what  nature  or  kind  soever  of  Charles 
Adams,  of  John  and  Remembrance  Rand,  of  W.  Hilton,  of  W.  Brooking, 
&c. ;  1694,  July  30,  of  all  and  singular  the  lands,  houses,  goods,  rights, 
and  credits,  and  of  all  the  estate  or  estates,  both  real  and  personal,  of 
Tho.  Drew,  &c. ;  1696,  of  the  estate  of  A.  B. 

(c)  Administration  of  John  Shipway,  1683;  of  D.  Gilman,  1684;  of 
Geo.  Wallace,  W.  Palmer,  1685;  Isaac  Waldron,  1686;  Claud  Champion, 
1687. 


518  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


[Extracts  fkom  Pkobatk  Rkcouos.    Pkrsons  entitlkd  to  Administkr. 

Rknunciation.] 

It  would  seem  that  the  eldest  son  was  in  early  times  viewed 
as  having  a  superior  claim  to  the  rest  of  the  children. 

But,  in  1743,  administration  of  Paul  Gerrish's  estate,  on  the 
renunciation  of  the  widow  in  favor  of  a  younger  son  and  son- 
in-law,  was  granted  to  them.  Four  months  afterwards,  the 
eldest  son  petitioned  for  a  revocation,  which  was  refused  ;  and 
it  was  holden  that  his  claim  was  no  better  than  that  of  a 
younger  son.  This  decree  of  refusal  was  affirmed  by  the 
governor  and  council,  Jan.  7,  1743. 

There  are  frequent  instances  of  renunciation,  by  the  person 
entitled,  in  favor  of  particular  persons  not  entitled,  —  some- 
times mere  strangers,  —  and  administration  granted  accord- 
ingly. 

Those  renunciations  were  often  acknowledged  before  a 
justice  of  the  peace. 

[Extracts  from  Probate  Rkcords.     Inventory.] 

Inventory  has  at  all  times  contained  real  as  well  as  personal 
estate. 

Before  1718,  the  appraisers  were  often  appointed  by  the 
widow,  executor,  or  person  entitled  to  administration;  (a)  and 
in  early  times  the  inventory  was  generally  returned  before 
probate  or  grant  of  administration. 

In  early  times,  administrator  generally  sworn  ;  appraisers 
seldom,  till  1700  or  1720.  (5) 

The  widow  and  legatees  of  testates  —  sometimes  by  writing 
sealed  and  acknowledged,  sometimes  by  writing  only  —  ex- 
empted the  executor  from  the  necessity  of  returning  inventory. 
1738,  1740,  1764. 

In  early  times,  there  were  frequent  complaints  against  ex- 
ecutors and  administrators  for  not  making  perfect  and  complete 

(a)  In  1690  the  appraisers  appointed  by  a  justice  of  the  peace. 
(6)  In  1678  the  appraisers  called  arbitrators. 


EXTRACTS  519 


From  Manuscript  Treatise  on  Probate  Law. 


inventory,  and  charging  them  with  fraudulent  designs  in  the 
omissions. 

[Extracts  from  Probate  Records.     Insolvent  Course  of   Adminis- 
tration.    Allowance  in  Lieu  of  Dower.] 

It  was  not  unusual  to  allow  a  sum  of  money  for  the  widow's 
dower,  and  to  sell  the  whole  real  estate.     1706.  (a) 

[Extracts  from   Probate   Records.     Administration  Account. 
Income  and  Repairs  of  Real  Estate.] 

Income  and  repairs  of  real  estate  frequently  charged  and 
credited,  from  1680  to  1776. 

Sometimes  repairs  exceed  income.    Z.  Clough's  estate.   1759. 

Charges  of  division  assigning  dower,  usual  charges  from  the 
earliest  times. 

[Extracts  from  Probate  Records.      Settlement  of  Administration 
Account.     Caveat  and  Notice.] 

Caveat  entered  against  settling  administration  account  with- 
out notice  to  the  interested.     1760.     1774. 

Notice  rarely  given  without  a  caveat  before  1736.  (5) 

[Extracts  from  Probate  Records.     Creditor's  Claims,  how 
enforced.] 

It  was  usual,  in  early  times,  for  the  judge  of  probate  to  allow 
accounts,  when  exhibited  to  him  by  the  creditors  of  the  estate, 
and  to  order  the  administrator  to  pay. 

[Extracts  from  Probate  Records.     Partition.     Tenancy  in  Common, 
HOW  expressed.] 

Tenancy  in  common  often  expressed,  in  early  times,  by  a 
certain  number  of  acres.     (1  Powell,  Cont.  375,  376.) 

(a)  Sometimes,  it  is  said,  creditors  consent.     1706. 

(b)  Held,  on  argument,  on  petition  of  Jonathan  Moulton  against 
Rachel  Smith,  administratrix  of  John  Smith,  that  no  notice  is  necessary 
unless  requested.     1773. 


520  EXTRACTS 


From  Manuscript  Treatise  on  Probate  Law. 


[Extracts    from    Probate    Records.      Guardian    of    Infants,    how 

appointkd.] 

1719.    By  the  father,  by  will.     N.  Meserve.     1758. 
1708.    "I  give  my  son  to  A.  B.,"  &c. 

.  .  .  1758.    Persons  under  guardianship  may  elect  at  four- 
teen. 

[Extracts  from  Probate  Records.      Whether  Marriage  of  Infant 
Female  Ward  terminates  Guardianship.] 

Marriage  of  an  infant  feme  ward  supposed  to  terminate  the 
guardianship.     1737. 


EXTRACTS 


JUDGE    SMITH'S    LEGAL    MANUSCRIPTS. 


[1807.     In  Debt  on  a  Penal   Statute  the  Penalty  was  alleged  to 

HAVE   BEEN   £100,  WHICH   WAS   AVERRED   TO   BE    EqUAL   TO  $333.33. 

Motion   in   Arrest  of  Judgment,  on  the   Ground  that  it  should 
HAVE  been  stated  TO  BE  Equal  TO  $333. 33^^^^.] 

It  is  sufficient  to  say,  "  i)g  ^  of  a  cent  non  curat  lex^  .  .  . 
The  law  does  not  require  fractions  of  a  cent  to  be  stated. ^ 

[Inexpediency  of  making  all  Frauds  Punishable  as  Indictable 
Offences.  —  From  an  Opinion  in  1814.] 

I  think  we  are  in  danger  of  turning  civil  injuries  into  indict- 
able offences,  and  that  the  interest  of  the  public  is  sacrificed 
by  too  much,  as  well  as  by  too  little,  criminal  prosecution. 

All  criminal  laws  should  be  auxiliary  to  the  law  of  morality  ; 
but  I  am  clearly  of  opinion  that  it  would  be  a  less  evil,  and 
that  there  would  be  less  fraud  in  society,  if  the  law  should 
leave  all  frauds  practised  by  one  man  on  another,  by  means  of 
false  tokens  and  false  pretences,  and  by  means  of  falsehood, 
however  artfully  contrived,  to  be  redressed  by  civil  actions, 
than  if  every  fraud  should  be  held  indictable.     [In  the  latter 

^  It  would  seem  that  the  averment  of  the  amount  of  the  penalty  in 
Federal  currency  was  unnecessary.  Pike  v.  Madbury,  1841,  12  N.  H. 
262. 

For  an  instance  of  the  application  of  the  maxim,  "  De  minimis  non 
curat  lex,'''  see  Avery  v.  Bowman,  1860,  40  N.  H.  453.  The  maxim  was 
held  inapplicable  in  Lisbon  v  Bath,  1850,  21  N.  H.  319 ;  and  in  Wells  v. 
Burbank,  1845,  17  N.  H.  393,  412. 


522  EXTRACTS 


From  Legal  Manuscripts. 


event]  I  think  the  inconvenience  and  mischiefs  to  the  public, 
and  the  frauds  on  the  i)ul)lic  treasury,  wouhl  be  greater  than 
the  evils  experienced  by  individuals  (greater  in  amount  than 
the  money  taken  from  individuals  by  cheating),  when  they  know- 
that  they  must  obtain  redress  for  their  private  wrongs  by  pri- 
vate action  in  the  common  course  of  law.  Suppose  every  lie 
should  be  the  matter  of  an  indictment.  In  the  first  place,  it 
would  by  no  means  cure  the  evil ;  and  if  it  did,  it  would  cost 
too  much.  I  believe  it  is  just  as  practicable,  and  would  be  just 
as  wise,  to  attempt  to  straighten  all  crooked  limbs.  .  .  . 

[As    TO    TiiK    Statute    Piiraskology,  —  "A    Conthovkksy    of    $200 

Value."] 

The  "  value  "  of  a  controversy  is  a  singular  mode  of  expres- 
sion. Most  people  find  a  controversy  of  little  value  ;  often 
worth  nothing,  and  sometimes,  like  negative  quantities  in 
algebra,  worse  than  nothing. 

[Custom  of  bringing  Suit  to  enforce  Payment  of   Tax.  —  From  an 
Opinion  in  1803.] 

With  regard  to  towns,  parishes,  and  religious  societies,  they 
are,  by  law,  authorized  to  raise  money  for  certain  objects;  and 
the  same  law  authorizes  distress  to  be  made,  in  case  of  non- 
payment, on  any  personal  estate  of  the  person  taxed.  Such  a 
tax  is  a  personal  duty  authorized  by  law;  and  an  action 
would  doubtless  lie  to  enforce  payment  under  certain  circum- 
stances.    Such  actions  have  frequently  been  brought.^ 

[Fees  of  Arbitrators.  —  From  an  Opinion  delivered  in  1808.] 
It  is  not  unfrequent  for  arbitrators  to  receive  for  fees  what 
they  can  drink. 

1  It  is  now  understood  that  a  suit  cannot  be  maintained  in  this  State 
to  enforce  payment  of  a  tax.     llibhard  v.  Clark,  1875,  56  N.  H.  155. 

For  authorities  elsewhere,  see  Cooley  on  Taxation,  13,  300;  2  Dillon, 
Mun.  Corp.  §§  053-656;  Burroughs  on  Taxation,  §  105;  City  of  Faribault 
V.  Misener,  1874,  20  Minn.  396. 

In  the  earliest  American  case,  Ruddock  v.  Gordon,  1763,  Quincy,  58,  the 
collector  brought,  in  his  own  name,  trespass  on  the  case  "  upon  a  general 
indehilatus  assumpsit ; "  and  it  was  held  that  such  a  suit  was  not  maintain- 
able. 


EXTRACTS  523 


From  Legal  Manuscripts. 


[What  Part  of  the  English  Common  Law  is  in  Force  herk. — From 
AN  Opinion  in  1803.] 

The  English  law,  as  a  system  of  jurisprudence  framed  by 
wise  men  and  approved  by  the  experience  of  ages,  is  entitled 
to  great  respect.  Much  of  it,  doubtless,  is  in  force  in  this 
State,  but  not  the  whole.  To  determine  what  is  in  force,  and 
what  not,  we  must  advert  to  the  situation  and  circumstances 
of  the  two  countries.  Many  maxims,  useful  in  the  old,  would 
be  pernicious  in  the  new  world.  Besides,  we  have  by  statute 
and  by  usage  introduced  many  new  principles  into  our  juris- 
prudence. These  virtually  exclude  certain  parts  of  the  Eng- 
lish common  law.  Maxims  of  law  which  grow  out  of  the 
feudal  system  are,  in  general,  inapplicable  in  this  country.^ 

[Early  Records.] 
It  is  observable  in  the  records  from  1696  to  1710  that  where 
the  greatest  strictness  was  observed,  and  even  quibbling,  es- 
pecially in  pleas  in  abatement,  there  was  the  greatest  looseness 
in  essentials  or  principles. 

[Under  the  Head  of  "Pleading"  in  the  Manuscript  Digest,  the 
following  Extracts  from  Opinions  are  referred  to  as  "  Lec- 
ture AND  Exhortation  to  the  Bar."] 

[1808.]  In  the  course  of  my  judicial  duty,  in  examining 
records  and  pleadings,  I  have  seen  none  more  slovenly  and 
incorrect  than  the  record  now  under  consideration.  If  the 
copy  with  which  I  have  been  furnished  is  not  faulty,  the  dec- 
laration is  incorrect ;  the  service  is  bad  ;  the  plea  would  be 
bad  on  error,  it  would  not  be  cured  by  verdict ;  the  replication 
is  bad  ;  the  rejoinder  is  incorrect ;  the  causes  of  demurrer  are 
many  of  them  absurd ;  and  even  the  joinder  in  demurrer 
might  itself  be  demurred  to,  if  such  a  thing  were  ever  allowed. 
It  is  painful  to  peruse  such  a  collection  of  blunders.  They 
serve  to  disgrace  a  State  in  whose  records  they  appear.  If  I 
did  not  know  that  the  gentlemen  concerned  in  these  pleadings 
(and  the  remark  applies  to  our  pleadings  in  general ;  there  are 

1  Compare  State  v.  Rollins,  1837,  8  N.  H.  550. 


524  EXTRACTS 


From  Legal  Manuscripts. 


some  honorable  exceptions),  if  I  did  not  know  that  they  pos- 
sessed a  good  share  of  law-knowledge,  I  should  certainly  con- 
clude otherwise  from  their  pleadings.  There  is  no  want  of 
eloquence,  but  a  deplorable  want  of  accuracy,  and  a  plentiful 
crop  of  slovenliness  and  blunders.  Of  this  I  have  long  been 
persuaded,  that  in  any  State  where  the  pleadings  are  incorrect 
there  is  but  little  sound  law-knowledge. 

[1809.]  This  replication  is  extremely  irregular  and  in- 
formal. It  contains  much  that  ought  to  have  been  omitted, 
and  omits  some  things  which  ought  to  have  been  stated ;  and 
is,  in  many  particulars,  untechnical  in  the  language.  I  cannot 
help  repeating,  on  this  occasion,  what  I  have  so  often  men- 
tioned,—  my  extreme  mortification  to  find  that  so  little  im- 
provement is  made,  in  this  State,  in  this  most  useful,  necessary, 
and  honorable  science  of  pleading  ;  while  in  almost  every  other 
State  in  the  Union  it  is  cultivated,  and  in  some  States  has 
already  arrived  at  a  considerable  degree  of  perfection.  I  do- 
not  think  that  many  causes  are  lost  in  our  courts  for  want  of 
good  speaking  at  the  Bar,  at  least  for  not  speaking  enough. 
But  for  want  of  good  and  orderly  pleading,  many  a  just  cause 
or  just  defence  has  been  overthrown  in  judgment.  Where 
there  is  no  good  pleading,  there  can  be  no  correct  knowledge 
of  the  law,  though  there  may  be  much  speaking,  and  even 
much  eloquence.  I  am  aware  that  little  is  due  to  my  opinions, 
and  less  to  my  feelings,  as  a  judge  or  as  a  man  ;  but  I  can 
assure  the  Bar  that  nothing  is  more  disgusting  than  the  labor 
of  perusing  irregular,  and,  in  many  cases,  unintelligible,  plead- 
ings and  statements  of  cases.  Our  records  will  remain  when 
we  are  forgotten ;  and  I  do  not  wish  to  transmit  my  humble 
name  to  the  lawyers  of  the  next  generation  in  company  with 
the  crude,  undigested  mass  of  matter,  falsely  called  pleadings, 
of  which  too  large  a  portion  of  our  records  are  composed. 
Next  to  the  substance  and  necessary  form  in  pleading,  neat- 
ness is  to  be  attended  to ;  that  is,  inserting  no  more  nor  less 
than  is  necessary  in  pleading,  and  expressing  that  which  is 
necessary  in  apt  and  appropriate  words.  Lawes,  62.  Our 
pleadings,  when  not  incorrect  in  substance,  are  slovenly  in 
the  extreme.     I  hope  it  will  be  considered  that  my  real  love 


EXTRACTS  525 


From  Legal  Manuscripts. 


for  the  profession,  and  a  desire  to  see  it  as  honorable  as  it  is 
useful,  dictate  these  remarks,  and  not  any  pleasure  I  can  have 
in  pointing  out  defects.  Most  of  our  pleadings  are  too  bad 
for  criticism.  Some  of  the  Bar  discover  a  laudable  care  in 
having  their  pleadings  correct  and  neat ;  and  I  have  observed 
that  correctness  in  pleading  and  real  law-knowledge  keep  pace 
with  each  other.^ 

[Of  an  Agreement  to  apply  for  an  Act  of  Incorporation.  —  From 
AN  Opinion  in  1803.] 

It  was  a  mere  agreement  to  be  created,  to  be  born.     Might 
not  the  signers  repent  before  actual  birth  ? 

[Of  A  Corporation  chartered  June  14,  1800.] 
This  body  was  created  out  of  chaos,  or  made  of  raw  mate- 
rials, June  14,  1800.     It  has  no  parent,  no  ancestor,  no  pre- 
decessor. 

[Duty  of  Grand  Jurors,  in  some  Cases,  to  act  without  waiting  fou 
Formal  Complaints.  —  From  a  Charge  to  the  Grand  Jury,  1814.] 

There  is,  gentlemen,  a  class  of  cases,  in  which  the  public 
rely  more  on  you  than  on  the  public  prosecutor,  or  even  on 
the  courts ;  and  where  a  great  deal  of  vigilance,  and  even 
zeal,  are  quite  becoming  your  office.  I  have  reference  to  that 
part  of  your  duty  which  gives  you  the  superintendence  of  the 
public  police,  that  is,  of  nuisances  of  various  descriptions  ;  the 
laws  which  regulate  schools  ;  the  due  observance  of  the  Lord's 
Day ;  the  repairs  of  highways  and  bridges  ;  the  erection  and 
maintenance  of  guide-posts  ;  the  having  standards  of  weights 
and  measures  ;  frauds  in  town-meetings ;  laws  regulating 
licensed  houses  ;  with  many  others  which  it  would  be  tedi- 
ous even  to  mention.  From  the  nature  of  these  regulations, 
the  non-observance  of  them  must  be  known  to  the  grand 
jurors,  and  on  the  grand  jury  it  must  depend,  whether  these 
wholesome  regulations  are  to  remain  a  dead  letter,  or  pro- 
mote the  convenience,  peace,  and  good  order  of  society.  If 
the  grand  jury,  in  cases  of  this  sort,  wait  for  formal  complaints, 
they  will  leave  undone  half  their  duty.     For  the  first  half- 

^  See  Memoir  of  Chief  Justice  Parsons,  221-224. 


526  EXTRACTS 


From  Legal  Manuscripts. 


century  in  this  State,  we  had  no  such  ofiicer  as  attorney- 
general,  or  public  prosecutor  of  any  sort ;  and  yet,  perhaps, 
the  laws  of  this  description,  and  those  respecting  temperance, 
sobriety,  industry,  &c.,  were  never  better  executed  ;  and  this 
was  owing  to  the  vigilance  and  zeal  of  the  grand  juries,  as- 
sisted by  patriotic  and  public-spirited  individuals.  I  cannot 
find  that  the  courts  of  that  day  merited  any  high  degree  of 
praise. 

["CoMPAKisoN   OF  New  Hampshire  Ancient  and   Modern   Criminal 
I, AW."  —  From  a  Charge  to  the  Grand  Jury,  1814.] 

It  is  a  common  remark  that  human  nature  is  always  the 
same.  But  certainly  the  crimes  of  one  age  are  very  different 
from  those  of  another.  In  this  small  section  of  the  world,  we 
have  had  our  revolutions  of  vices.  The  sins  which  most  easily 
beset  us  at  this  day  were  many  of  them  unknown,  at  least 
unnoticed,  a  century  and  a  half  ago.  We  have  now  two 
crimes,  only,  punishable  with  death,  —  treason  and  murder. 
One  hundred  and  seventy  years  ago,  there  were  fifteen  capital 
offences.  Some  of  them  are  not  now  considered  as  crimes 
cognizable  by  the  civil  magistrate.  Others  are  mere  misde- 
meanors, to  which  slight  punishments  are  annexed.  Idolatry, 
witchcraft,  blasphemy,  manslaughter,  adultery,  man-stealing, 
bearing  false  witness  in  capital  cases,  conspiracy  against  the 
State,  cursing  father  and  mother,  were  all  capital.  Forgery, 
which  at  this  day  is  perhaps  the  greatest  crime  against  the 
public,  was  then  a  mere  misdemeanor ;  and  so  were  burglary 
and  robbery. 

The  lawgivers  of  that  day  did  not  distinguish  accurately 
between  crimes  against  society,  and  crimes  or  sins  against 
Heaven.  They  did  not  consider  that  human  laws  can  have 
no  concern  with  any  but  social  and  relative  duties,  being 
intended  to  regulate  the  conduct  of  man,  as  a  member  of  civil 
society ;  and,  consequently,  that  crimes  are  to  be  estimated 
merely  according  to  the  mischiefs  which  they  produce  in  this 
world.  All  vices  are  subject  to  the  vengeance  of  Eternal 
Justice ;  but  those  only  which  are  injurious  to  society  are 
liable  to  the  temporal  punishments  of  human  tribunals.     So 


EXTRACTS  627 


From  Legal  Manuscripts. 


far  as  crimes  against  the  Deity  tend  to  deprave  the  manners 
of  the  people,  and  to  subvert  moral  obligation,  they  are  proper 
objects  of  human  laws,  but  no  farther.  We  must  honor  the 
Deity,  but  not  attempt  to  vindicate  his  honor,  or  avenge  his 
cause.  Idolatry,  therefore,  was  not  a  crime  within  the  reach 
of  human  laws.  Witchcraft  was  considered  as  a  species  of 
idolatry,  and  therefore  made  capital.  Real  witchcraft  never 
did  much  injury  to  society.  Pretended  witchcraft,  and  the 
notice  which  legislators  and  magistrates  have  been  pleased  to 
take  of  it,  have  inflicted  much  evil  on  society,  and,  in  partic- 
ular, have  left  a  foul  stain  on  our  country. 

Blasphemy,  where  the  Christian  leligion  is  professed,  is 
unquestionably  an  offence  against  the  State,  but  ought  not  to 
have  been  visited  with  capital  punishment.  In  1646,  this 
punishment  was  most  unjustly  applied  to  the  native  pagans, 
as  well  as  the  Christian  English. 

Denying  the  Bible  to  be  the  written  and  infallible  word  of 
God  was  subject  to  a  severe  fine  and  corporal  punishment ; 
and,  for  the  second  offence,  banishment  or  death,  in  the  dis- 
cretion of  the  Court ! 

Adultery  was  made  capital  because  it  was  so  by  the  law  of 
Moses.  It  is  doubtless  a  misdemeanor,  and  the  just  object 
of  legal  animadversion.  It  is  a  crime  most  pernicious  to  soci- 
ety. Marriage  is  a  civil  contract,  and  something  more.  On 
the  breach  of  it,  society  suffer  an  injury,  as  well  as  the  inno- 
cent party  ;  for  nothing  tends  so  much  to  general  dissoluteness 
of  manners. 

Man-stealing  was  a  capital  offence,  and  that  punishment 
can  hardly  be  thought  too  severe.  We  have  laws  at  this  day 
against  stealing  a  man's  goods;  but  none  against  stealing  the 
owner,  the  man  himself.^  Till  within  a  very  few  years  this 
abominable  crime  of  stealing  men,  and  holding  them  in  perpet- 
ual slavery,  has  been  too  general  for  the  legislature  to  grapple 
with.  Indeed,  in  the  fallible  judgment  of  man,  that  which 
multitudes  are  in  the  daily  practice   of  is   hardly  deemed  a 

^  In  State  v.  Rollins,  1837,  8  N.  H.  550,  it  was  held  that,  after  the  repeal 
of  the  provincial  statute,  kidnapping  was  indictable  as  an  offence  at  com- 
mon law. 


528  EXTRACTS 


From  Legal  Manuscripts. 


crime.     But  it  is  to  be  hoped  that  this  foul  blot  on  our  na- 
tional character  will  soon  be  washed  out. 

There  was  one  error  of  our  fathers  which  our  Constitution 
has  cut  up  by  the  roots.  I  mean  their  laws  against  heresy. 
In  common  with  the  rest  of  mankind  at  that  day,  they  enter- 
tained the  absurd  idea  that  all  mankind  might  be  made  to 
think  alike  on  religious  subjects,  because  we  all  derive  our 
knowledge  on  this  most  interesting  of  all  subjects  from  the 
light  of  reason,  purified  by  the  still  clearer  and  more  certain 
light  of  divine  revelation.  But  it  has  not  pleased  God  to 
make  this  good  (if  it  be  one)  attainable  in  this  life.  It  cannot 
be  denied  that  religious  belief  has  an  influence  on  practice,  on 
morals,  on  the  happiness  and  well-being  of  society.  But  this 
belief  must  spring  from  knowledge.  It  cannot  be  produced 
by  an  act  of  the  legislature.  All  that  society  can  do  is  to  edu- 
cate, to  enlighten,  to  provide  for  public  instruction.  When- 
ever governments  attempt  to  take  one  step  beyond  this,  they 
step  out  of  their  proper  province  ;  they,  in  fact,  lay  claim  to 
infallibility.  Orthodoxy,  or  right  opinions,  are  the  opinions  of 
the  majority  ;  i.  e.,  the  government.  The  minority  are  always 
heretics.  An  infallible  government  never  reasons  well  on  re- 
ligion. It  can't  persuade  itself  that  there  can  be  any  thing 
wrong  in  compelling  erroneous  individuals,  on  the  pain  of  ban- 
ishment, and  even  death,  to  discard  error,  and  receive  the 
truth.  It  is  a  shame  to  us  Protestants  th-at  a  Papist  set  the 
example,  in  America,  of  equality  of  rights  in  religious  matters. 
Lord  Baltimore,  in  1634,  laid  the  foundation  of  his  Province 
on  the  broad  basis  of  security  to  property,  and  of  freedom  in 
religion,  establishing  Christianity  according  to  the  old  common 
law,  without  allowing  pre-eminence  to  any  particular  sect. 
This  liberal  and  enlightened  spirit  contributed  to  the  advance- 
ment and  prosperity  of  his  settlement.  It  seems  to  be  a  very 
unkind  return  for  this  excellent  example,  set  by  a  Roman 
Catholic,  to  exclude  this  sect  of  Christians  from  any  participa- 
tion in  our  government,  while  we  freely  admit  all  others,  and 
even  invite  such  as  have  no  religious  belief  of  any  sort  kindly 
to  come  among  us. 


EXTRACTS  529 


From  Legal  Manuscripts. 


At  this  day,  I  see  no  reason  to  apprehend  that  we  are  in  any 
danger  from  religious  persecution  on  account  of  lieretical 
opinions.  We  have  extirpated  heresy  by  lire  ;  not,  indeed,  in 
the  old  way,  by  burning  heretics,  but  by  burning  all  the  stat- 
utes which  declared  the  offence  of  heresy  and  thus  formed  the 
code  of  persecution.^  Perhaps  our  danger  lies  in  the  opposite 
extreme.  Because  religion  has  been  degraded  and  abused  to 
evil  purposes,  when  employed  as  an  engine  of  oppression  by 
the  civil  magistrate,  many  are  ready  to  suppose  that  its  influ- 
ence on  society  is  pernicious  and  not  salutary.  The  reverse  is 
the  doctrine  of  our  Constitution.  Nor  do  I  believe  there  ever 
existed  a  wise  legislator,  who  had  any  acquaintance  with  tlie 
Christian  religion,  who  did  not  view  it  as  eminently  calculated 
to  make  men  good  citizens,  and  good  subjects,  of  a  free  gov- 
ernment especially  .2 

1  Similar  language  in  the  opinion  in  Muzzy  v.  Wilkins^  reported  ante, 
1,  8,  is  there  credited  to  Charles  James  Fox. 

2  It  is  supposed  that,  by  the  "  ancient  criminal  law  of  New  Hampshire," 
the  author  meant  the  Massachusetts  statutes  in  force  during  the  union  of 
New  Hampshire  with  that  colony,  from  1641  to  16|f .  In  a  subsequent 
charge  to  the  grand  jury,  Judge  Smith  expressly  stated  that  he  had  never 
been  able  to  find  the  codes  of  law  enacted  by  the  New  Hampshire  Assembly 
in  16|§  and  in  1682.  No  part  of  either  code  was  printed  before  1831,  and 
the  entire  codes  were  not  printed  until  1866. 

"  It  has  been  stated  by  diiferent  writers,  and  is  generally  believed,  that 
this  code  "  of  16||  "  was  borrowed  from  the  laws  of  Massachusetts  Bay. 
This  is  an  error;  for,  in  fact,  the  entire  criminal  code,  with  the  exception 
of  a  few  sections  and  some  slight  verbal  differences,  was  taken  from  the 
laws  of  the  '  Colony  of  New  Plimouth.' 

"  By  comparing  the  '  Lawes  and  Libertyes '  of  Massachusetts,  of  1641, 
1660,  and  1672,  with  this  New  Hampshire  code,  it  will  be  seen  that  the 
latter  makes  a  juster  discrimination  in  the  definition  and  classification  of 
crimes,  and  in  the  punishments  prescribed.  For  instance  :  In  the  Massa- 
chusetts code,  adultery  is  punishable  with  death ;  in  the  New  Hampshire, 
with  whipping.  In  the  former,  public  rebellion,  also,  is  punishable  with 
death;  in  the  latter,  with  death,  or  'some  other  grievous  punishment,' 
in  the  discretion  of  the  court.  The  law  against  blasphemy,  in  the  New. 
Hampshire  code,  contains  the  important  qualifying  words,  '  any  person 
professing  the  true  God;'  and,  in  the  law  against  witchcraft,  the  quahfy- 
ing  words  are,  '  if  any  Christian,  so  called,  be  a  witch,'  &c." 

The  New  Hampshire  Code  of  1682   "  reduced  the  number  of  capital 

34 


630  EXTRACTS 


From  Legal  Manuscripts. 


[CiiiKF  JusTicic  Paksons'  Knowlkdgk  of  New  England  Law. — From 
AN  Unfinished  Essay  (begun  in  1836)  on  the  Laws  of  New 
England,  before  the  Separation  from  Great  Britain.  Also 
QUOTED  IN  Life  of  Judge  Smith,  pp.  427-428.] 

It  is  impossible  here  not  to  be  reminded  of  tlie  loss,  an  irrep- 
arable one,  it  must  be  felt  by  all  who  would  prosecute  these 
inquiries,  in  the  death  of  Mr.  Parsons.  He  died  in  1813. 
He  had  made  considerable  progress  in  his  studies  before  the 
war  \A  ith  Great  Britain.  He  was  highly  favored  in  a  most 
able  instructor,  and  at  his  death  was  certainly  better  skilled 
in  the  New  England  law  than  any  other  man  on  either  side 
the  Atlantic.  It  is  much  to  be  regretted  that  he  left  behind 
him  so  little  of  the  great  stores  of  the  law  peculiar  to  New 
England,  which  his  diligent  and  discriminating  mind  had  been 
collecting  and  digesting  for  nearly  half  a  century.  It  was  my 
good  fortune  to  become  acquainted  with  this  truly  great  man 
and  learned  lawyer  at  the  time  I  commenced  my  law  studies. 
I  cannot  suffer  this  occasion  to  pass  without  expressing  my 
heartfelt  acknowledgments  of  his  kindness.  He  was  ever 
ready  to  assist  such  as  manifested  a  desire  for  instruction. 
This  part  of  his  character,  I  believe,  has  not  had  that  justice 
done  to  it,  which,  in  an  eminent  degree,  it  deserved.  I  will 
not  say  that  Theophilus  Parsons  was  the  greatest  lawyer 
that  ever  lived  ;  but  I  risk  nothing  in  saying  that  he  knew 
more  of  the  New  England  law  which  existed  while  we  were 
British  colonies  than  any  other  man  that  has  lived,  or  perhaps 
that  ever  shall  live.  Some  of  his  learning  has  been  preserved 
in  the  reports  ;  but  much  the  greater  part  of  his,  and  nearly 
all  that  of  the  lawyers  and  judges  that  went  before  him,  is 
now  irretrievably  lost  to  the  community. 

[In  an  opinion,  in  1815,  referring  to  a  case  where  Theoph- 
ilus Parsons   had  been   counsel,  and   had  not  taken  a  certain 

crimes;  and,  in  several  particulars,  the  punishments  for  offences  of  an 
inferior  grade  were  made  less  severe." 

From  "  Notes,  Historical  and  Bibliographical,  on  the  Laws  of  New 
Hampshire,"  by  Albert  H.  Hoyt,  Esq.,  reprinted  from  the  "Proceed- 
ings of  the  American  Antiquarian  Society,  for  April,  1876,  with  Addi- 
tions." 


EXTRACTS  581 


From  Legal  Manuscripts. 


exception,  Judge  Smith  said,]  "  Parsons  did  not  take  this 
exception.     We  must  not  be  wiser  than  that  great  man." 

[Legislative  Ignouanck  of  the  Common  Law.] 

The  legislature  can  abrogate  this  law,  as  they  can  the  rules 
of  their  own  making.  But  it  would  be  well  for  the  people  if 
they  would  first  take  the  trouble  to  understand  it.  No  man 
acquainted  with  the  common  law  can  look  into  our  statute- 
book,  and  not  see  that  the  framers  of  the  statutes,  in  many 
cases,  were  ignorant  that  the  common  law  contained  precisel}^ 
the  same  provision,  and,  in  many  cases,  a  provision  diiferent 
and  better  adapted  to  the  wants  of  society.^ 

[The  above  is  also  quoted  in  Life  of  Judge  Smith,  p.  429.] 

[Poorly  i>rawn  Statutes.     From  a  Charge  to  the  Grand  Jury, 

1816.] 

From  my  own  experience,  I  can  say  that  our  courts  meet 
with  more  perplexity  in  their  endeavors  to  unravel  the  mean- 
ing of  ill-digested  and  ill-penned  statutes,  than  in  settling 
what  the  common  law  is. 

1  Compare  Doe,  J.,  in  McDuffee  v.  Portland  ^-  Rochester  R.R.,  1873,  52 
N.  H.  430,  456. 


INDEX    TO    CASES.' 


ABANDONMENT. 
See  Tender,  3. 

ACCEPTANCE. 
See  Arbitration  and  Award,  1 ;  Town,  4. 

ACCOUNT   OF  EXECUTOR. 
See  Probate  Court,  2-4. 

ACTION,   SURVIVORSHIP  OF. 
See  Bail,  1. 

ACTION  ON  THE   CASE. 
See  Bail,  3,  9;  Selectmen. 

AD   DAMNUM. 

Semble,  if  the  ad  damnum  be  expressed  in  figures,  it  is  bad  on  special 
demurrer.  But  it  was  said  that  an  amendment  would  be  allowed  with- 
out costs.     Hale  v.  Vesper,  283. 

ADMINISTRATOR. 
See  Executor. 

ADMISSION   BY  PLEADING. 
See  Replevin,  2. 

AFFREIGHTMENT. 
See  Charter  Party. 

AMENDMENT. 

An  amendment  of  the  declaration  may  be  permitted  on  review.  Frost  v. 
Chesley,  202. 

See  Ad  Damnum;  Demurrer,  2. 

1  Followed  by  "  Index  to  Extracts." 


634  INDEX   TO   CASES. 

"  ANNO   DOMINI." 
See  English  Language. 

ANSWERS. 
See  Evidence. 

APPEAL. 
See  Probate  Court,  2. 

APPEARANCE. 
See  Judgment,  5. 

APPRAISAL. 

See  Impounding,  3. 

APPRAISERS. 

See  Execution. 

ARBITRATION   AND   AWARD. 

1.  Report  of  referees  recommitted.     One  referee  (by  desire  of  the  party 

against  whom  the  report  was,  and  at  whose  request  it  had  been, 
recommitted)   refused  to  hear   the   parties   again.      The  other  two 
referees  reported  the  same  as  before,  and  additional  costs. 
First  report  accepted,  and  costs  of   recommitment  taxed.     Couch  v. 
Davis,  136. 

2.  B.  and  N.   made   a  parol  submission  of   all  demands  to  arbitration. 

Among  other  demands  in  favor  of  N.,  the  arbitrators  allowed  the 
face  of  an  execution,  omitting,  by  mistake,  to  deduct  a  partial  pay- 
ment indorsed  thereon.  A  written  award  was  made  in  favor  of  N. 
for  a  sum  of  money,  which  B.  subsequently  paid. 
Held,  that  B.  could  not  maintain  assumpsit,  for  money  had  and  re- 
ceived, against  N.,  to  recover  the  amount  indorsed  on  the  execution. 
Burbank  v.  Norris,  440. 

See  Bond;  Town,  1,  2. 

ARREST. 
See  Writ. 

,  ARREST   OF  JUDGMENT. 

See  Indictment;  Replevin. 

ASSENT. 
See  Legacy,  1. 

ASSESSORS. 
See  Selectmen. 


INDEX   TO    CASES.  635 

ASSETS. 
See  Executor,  3,  4;  Legacy,  1. 

ASSIGNEE. 
See  Covenants  for  Title. 

ASSUMPSIT. 

A.  recovered  judgment  against  B.,  C,  and  D.  B.  was  arrested  on  the 
execution  by  E.,  a  deputy  sheriff,  and  escaped.  A.  sued  the  sheriif,  and 
recovered  judgment  for  his  whole  debt,  which  E.  paid. 

Held,  that  E.  could  maintain  assumpsit,  for  money  paid,  against  B.,  C, 
and  D. ;  his  remedy  is  not  against  B.  alone.     Clarke  v.  Little,  100. 

See  Executor,  1,  2;  Judgment,  2-4;  Legacy,  1;  Part  Owners  of 
Vessel;  Pauper. 

ATTACHMENT. 

A  sheriff  attaching  goods  at  the  suit  of  A.,  B.,  and  C,  in  the  order  here 
stated,  is  bound  to  keep  them  safely,  so  that  the  last  may  have  the 
benefit  of  the  goods  to  satisfy  his  demand;  the  first  and  second  suits 
not  having  been  prosecuted.  Neither  the  sheriff,  nor  the  debtor,  nor 
the  creditor  can  appropriate  them  to  the  satisfaction  of  a  former  attach- 
ment, so  as  to  avail  against  a  latter,  except  on  execution.  Chapman  v. 
Bellows,  127. 

See  Judgment,  5;  Receiptor;  Review,  4. 

ATTESTATION. 
See  Deed. 

AUDITA    QUERELA. 
See  Judgment,  1. 

AVOWRY. 
See  Replevin,  3. 

BAIL. 

1.  The  cause  of  action  against  bail  is  founded  on  contract,  and  survives. 

Parker  v.  Willard,  212. 

2.  Bail  cannot  take  the  principal  out  of  the  jail  limits  (where  he  is  in 

execution  on  another  judgment),  for  the  purpose  of   surrendering 
him  in  discharge  of  the  bail.     Steele  v.  Warner,  263. 

3.  A  debtor  in  execution,  in  order  to  obtain  the  liberty  of  the  jail-yard, 

gave  a  "prison-bond,"  with  surety,  conditioned  that  he  should  remain 
a  prisoner  within  the  jail  limits  until  lawfully  discharged.  Subse- 
quently, the  debtor  was  carried  out  of  the  jail  limits  by  his  bail  in 
another  suit,  for  the  purpose  of  surrendering  him  in  discharge  of  the 
bail  in  that  suit. 
Held,  that  the  surety  in  the  prison  bond  could  maintain  an  action  on 


536  INDEX   TO   CASES. 

the  case,  against  the  bail,  for  thus  carrying  the  debtor  out  of  the  jail 
limits,     lb. 

4.  Such  action  may  be  brought  before  any  suit  on  the  prison  bond,  or 

before  payment  of  the  debt.    The  measure  of  damages  is  the  surety's 
liability  to  the  creditor.     lb. 

5.  Bail  in  the  original  action  are  not  liable  in  consequence  of  a  judgment 

for  the  original  plaintiff  rendered  on  review.    Rkoads  v.  Ayer  (cited), 
112. 

6.  In  scire  facias  against  bail,  the  return  of  non  est  inventus  is  conclusive, 

and  the  bail  cannot  contradict  it  by  pleading  that  the  principal  did 
not  avoid.     Buzzel  v.  Brown  ;  Palmer  v.  Morey  (cited),  360. 

7.  The  creditor  is  entitled  to  a  scire  facias  against  bail,  although  the  execu- 

tion  vi^as   not   delivered  to  the  oflBcer  until  the  day  before  return. 
Thompson  v.  Young  (cited),  360. 

8.  Bail  cannot  plead  to  sciVe/actas  that  the  creditor  might  have  arrested 

on  the  execution.     Gardner  v.  Boardman.,  360,  n. 

9.  In  an  action  by  bail  against  sheriff,  for  falsely  returning  non  est  as  to 

principal,  the  declaration  alleged  that  the  sheriff  "  could  have  taken  " 
the  body  of  the  debtor. 
Held,  that  this  did  not  state  a  good  ground  of  action,  and  that  it  would 
be  held  bad  upon  motion  in  arrest  of  judgment.    Eldridge  v.  Bellows., 
356. 

BANK. 

In  an  action  of  assumpsit  against  a  bank,  on  a  note  issued  by  the  bank, 
held:  defendants  bound  to  pay  notes,  when  presented,  in  a  reasonable 
time-  when  a  number  of  bills  are  presented,  defendants  should  be  al- 
lowed as  much  time  to  count  and  pay  specie  for  them  all  as  it  would 
take  to  receive  the  same  amount  in  specie  and  give  the  same  number 
and  amount  of  bills  in  exchange;  the  bank  cannot  claim  the  right  of 
paying  each  bill  separately;  bank  may  establish  reasonable  hours  for 
transacting  business  at  the  bank;  evading  payment  is  a  neglect  and 
refusal  to  pay.     Jones  v.  Coos  Bank,  249. 

BEES. 
One  who  finds  a  swarm  of  bees  in  a  tree  on  another's  land,  marks  the 
tree,  and  notifies  the  land-owner,  cannot  maintain  trover  against  the 
land-owner  for  taking  the  honey.     Fisher  v.  Steward,  60. 

BILLS. 
See  Bank. 

BILLS   AND  NOTES. 
See  Promissory  Notes. 

BOND. 

H.  gave  bond  with  surety,  conditioned  to  pay  L.  what  should  be  awarded 
on  submission,  by  rule  of  court,  of  actions  then  pending.     An  award 


INDEX   TO    CASES.  637 

was  made  in  favor  of  L.,  judgment  was  rendered  on  it,  and  H.  was 
committed  to  jail  on  the  execution. 
In  an  action  on  the  bond  against  H.,  after  the  death  of  the  surety,  it  was 
held,  that  the  condition  of  the  bond  was  not  satisfied  by  the  commitment 
of  H.,  nor  by  the  fact  that,  after  commitment,  H.  gave  bond  to  the 
sheriff  for  the  liberty  of  the  jail-yard.  Lord  v.  Hobbes,  80. 
See  Prison  Bond;  Surety. 

BOUNDARY. 

See  Town,  1-3. 

BRIDGE. 
See  Constitutional  Law,  4;  Charter. 

CAPTURE. 

See  Salvage. 

CHALLENGE. 
See  Jury,  2. 

CHARITABLE    AND   PIOUS   USES. 

1.  In  the  grant  of  the  township  of  Weare,  it  was  provided  that  one  share 

of  land  should  "  be  for  and  toward  the  support  of  the  gospel  ministry 
there  for  ever." 
Held,  that  this  share  belonged  to  the  town ;  that  a  minister  settled  over 
a  church  and  incorporated  religious  society  in  Weare  could  not  hold 
it  against  the  town;  and  that  the  town  could  sell  the  land  and  divide 
the  proceeds  equally  among  the  different  Christian  denominations 
therein.     Cilley  v.  Cayford,  150. 

2.  A  religious  corporation  is  capable    of   taking   by  devise.      Brown  v. 

Langdon,  178. 

3.  Devise,  in  176.5,  to  the  Church  of  England  as  by  law  established  in 

Portsmouth,  or  Queen's  Chapel  in  Portsmouth,  the  bequest  to  be 
under  the  directions  of  the  church-wardens  of  said  parish  for  the 
time  being,  and  to  remain  as  a  perpetual  glebe  to  the  said  church  and 
parish  and  to  their  successors  for  ever. 
Held,  that  the  devise  to  Queen's  Chapel  was  good,  if  Queen's  Chapel 
was  a  corporate  body  in  1765.  That  it  was  a  corporate  body  may  be 
proved  other  than  by  act  of  the  legislature  or  governor.  Exercise  of 
corporate  privileges  for  upwards  of  a  century,  recognition  in  ancient 
records  and  papers,  and  in  acts  of  the  legislature,  are  evidence  on  this 
question,     lb. 

CHARTER. 

M.  was  the  owner,  by  grant  from  a  colonial  governor,  of  an  exclusive  ferry- 
privilege  within  certain  limits.  Dec.  18,  1793,  M.  gave  an  applicant  for 
a  bridge-charter  his  written  consent  to  the  erection  of  a  bridge  within 


538  INDEX   TO   CASES. 

the  liinits  of  his  ferry.  This  writing  was  given  to  be  exhibited  to  the 
legislature,  and  was  so  exhibited.  Jan.  29,  1794,  an  act  was  passed, 
authorizing  the  erection  of  a  bridge,  the  act  to  be  void  if  the  corpora- 
tion should  fail  to  erect  the  bridge  within  four  years.  The  bridge  not 
having  been  built,  an  act  was  pas.sed  June  K5,  1800,  allowing  a  further 
time  of  three  years;  and  the  bridge  was  built  within  that  time. 

Held,  that  M.  and  his  grantee  with  notice  were  estopped  by  M.'s  consent 
from  complaining  of  the  erection  of  the  bridge.  Morey  v.  Proprietors 
of  Or  ford  Bridge,  91. 

What  M.'s  right  would  be,  in  the  absence  of  such  consent,  quonre.     Ih. 

CHARTER   PARTY. 

A  vessel  was  chartered  for  a  voyage  from  P.  to  M.,  and  back  again  to  P., 
the  charterer  to  pay  freight,  at  so  much  per  month,  thirty  days  after 
the  vessel's  return  to  P.  The  vessel  was  lost,  with  all  the  cargo, 
on  the  homeward  voyage. 

Held,   that  the  charterer  was  not  liable,   even  for  the  outward  freight. 

Cutts  V.  Frost,  309. 

See  Seal. 

CO-HEIRS. 

See  Partition. 

COMITY. 

See  Executor,  G;  Judgment,  5,  6. 

COMMENCEMENT    OF   ACTION. 

See  Executor,  5. 

COMMITMENT. 
See  Bond;  Receiptor,  2. 

COMPLAINT  FOR  EMBEZZLEMENT. 

See  Evidence. 

CONFLICT   OF   LAWS. 
See  Executor,  6;  Judgment,  5,  6. 

CONGREGATIONAL. 

See  Constitutional  Law,  1-3. 

CONSENT. 
See  Charter;  Judgment,  5. 

CONSTITUTIONAL   LAW. 

1.  The  test  of  difference  in  sect,  within  the  meaning  of  the  Constitution, 
is  difference  in  the  form  of  church  government,  discipline,  and  wor- 


INDEX   TO    CASES.  539 

ship;  not  difference  of  opinion  on  doctrines  of  theology.  Muzzy  v. 
Wilkins,  1. 

2.  Presbyterians  and   Congregationalists  are  different  sects  in  religion, 

within  the  meaning  of  the  Constitution.  Hence  a  Presbyterian  can- 
not be  taxed  for  the  support  of  a  Congregational  minister.     Ih. 

3.  Universalists  and  Congregationalists  are  not  different  sects  in  religion, 

within  the  meaning  of  the  Constitution.  Universalists  may  be  taxed 
for  the  support  of  a  Congregational  minister.  Henderson  v.  Erskine, 
36,  n. 

4.  Whether  the  legislature  can  authorize  the  erection  of  a  bridge  within  the 

limits  of  an  exclusive  ferry-privilege  (granted  by  a  colonial  governor), 
without  providing  compensation  for  the  owner  of  the  ferry-privilege, 
qiicere.     Morey  v.  Proprietors  of  Or  ford  Bridge,  91. 

5.  A.  brought  an  action  of  debt  against  B.,  for  a  penalty  given  by  statute, 

and  recovered  judgment.     After  judgment  the  statute  was  repealed. 
B.  then  reviewed. 
Smith,  C.  J.,  thought  that  the  repeal  did  not  entitle  B.  to  judgment  on 
review.     But  the  contrary  was  afterwards  held  in  the  Superior  Court, 
to  which  the  cause  was  transferred.     Letois  v.  Foster,  420. 

CONTRA   FORMAM   STATUTI. 
See  Penal  Action,  1. 

CONTRACT. 
See  Bail,  1;  Charter  Party;  Receiptor,  1,  4;  Surety, 

CONTRACT   FOR  PAYMENT   IN   SPECIFIC   ARTICLES. 
See  Tender,  3. 

CONVEYANCE. 
See  Deed;  Proprietors  of  Common  Lands,  1. 

CORONER. 
See  Writ,  2,  3. 

CORPORATION. 
See  Charitable  and  Pious  Uses;  Charter;  Devise. 

COSTS. 
See  Indorser  of  Writ;  Judgment,  2,  3;  Tender,  1. 

COVENANT,    ACTION   OF. 

See  Seal. 

COVENANTS  FOR   TITLE. 

1.  Where  a  vendor  sells  an  entire  tract  of  land  with  covenant  of  warranty, 
a  subsequent  purchaser  of  a  part  of  the  tract  can  sue  him  upon  this 
covenant.     Hall  v.  Stone,  389. 


540  INDEX   TO   CASES. 

2.  A.  sold  to  B.  a  lot  of  land  containing  one  hundred  acres,  with  the  usual 
covenant  of  warranty.  B.  sold  eighty  acres  of  the  same  lot  to  C, 
•with  a  similar  covenant.  C.  was  evicted  by  one  claiming  under  title 
paramount  to  A. 
Held,  that  C.  could  maintain  an  action  against  A.  on  his  covenant  of 
warranty.     lb. 

CRIMINAL  LAW. 
See  Forgery;  Indictment. 

DAMAGE. 
See  Ad  Damnum;  Bail,  4;  Impounding,  3. 

DATE. 
See  English  Language. 

DEATH. 

See  Surety. 

DEBT,    ACTION    OF. 

See  Executor,  4;  Judgment,  1,  5,  6;  Penal  Action,  1,2;  Recogni- 
zance, 1,  2  ;  Review,  1. 

DECEIT. 
See  Prison  Bond. 

DECLARATION. 
See  English  Language;  Penal  Action,  1;  Writ,  1, 

DECREE. 
See  Probate  Court,  2,  4. 

DEED. 

Under  the  statute  of  1791,  a  deed  attested  by  only  one  witness  will  not  pass 
the  land,  even  as  against  the  grantor.  An  instrument  not  attested  as 
the  statute  requires  cannot  operate  as  a  common-law  conveyance;  the 
mode  of  execution  prescribed  by  the  statute  excludes  all  other  modes. 
Thompson  v.  Bennet,  327. 

See  Proprietors  of  Common  Lands,  1. 

dj:fault. 

I  See  Executor,  3. 

DELAY. 
See  Bank. 

DELIVERY. 
See  Receiptor,  1,  3,  4;  Tender,  3. 


INDEX   TO   CASES.  541 

DEMAND. 
See  Promissory  Notes. 

DEMURRER. 

1.  There  can  be  no  demurrer  to  a  writ  of  review.     Eldridge  v.  Belloics, 

356. 

2.  If  the  general  issue  was  the  only  plea  in  the  original  action,  a  demurrer 

to  the  declaration  cannot  be  filed  on  review.     lb. 

See  Ad  Damnum;  English  Language;  Venue,  3. 

DENOMINATION. 

See  Constitutional  Law,  1-3. 

DESCRIPTION. 
See  Replevin,  1. 

DEVISE. 
A  religious  corporation  is  capable  of  taking  by  devise.    Brown  v.  Langdon, 
178. 

See  Charitable  and  Pious  Uses,  3;  Legacy,  2. 

DISCHARGE. 
See  Bond;  Judgment,  4;  Prison  Bond;  Receiptor,  2;  Tender,  3. 

DISPUTE   ABOUT   TITLE. 
See  Partition. 

DIVIDED  HOUSE. 

See  Right  of  Support. 

DIVISIBILITY   OF  COVENANTS. 

See  Covenants  for  Title. 

DIVISION. 
See  Partition;  Town,  4. 

DIVISIONAL  LINES. 
See  Town,  1-3. 

DOWER. 

1.  It  is  no  plea  to  a  writ  of  dower,  that  another  widow,  whose  husband  was 

seised  prior  to  the  demandant's  husband,  is  entitled  to  dower  in  the 
same  lands.     Geer  v.  Hamblin,  218. 

2.  D.  recovered  judgment  against  W.  and  A.,  and  levied  execution  on  W.'s 

real  estate.     Upon  review,  W.  and  A.  recovered  judgment  against  D. 
for  the  greater  part  of  the  amount  included  in  the  original  judgment, 
and  levied  their  execution  on  the  same  land. 
Held,  that  D.'s  widow  was  entitled  to  dower  in  said  land.     Drew  v. 
Munsey,  317. 


542  INDEX   TO   CASES. 

EARNINGS. 
See  Parent  and  Child. 

EASEMENT. 

Sec  Right  of  Support. 

EMBEZZLEMENT. 

See  Evidence. 

ENGLISH   LANGUAGE. 

A  declaration  containing  the  words  "Anno  Domini"  is  not  demurrable 
on  the  ground  that  these  words  are  not  in  the  English  tongue.  Hale 
V.  Vesper,  283. 

ESCAPE. 
See  Assumpsit. 

ESTATES   OF   PERSONS   DECEASED. 

See  Executor  ;  Probate  Court. 

ESTOPPEL. 
See   Charter;  Judgment,   1-4;   Prison   Bond;   Remittitur;   Seal; 

Town,  3. 

EVIDENCE. 

The  answers  made  by  a  person  to  interrogatories  put  to  him  by  order  of 
the  judge  of  probate,  on  a  complaint  against  him  for  concealing  and 
embezzling  the  goods  of  an  intestate,  may  be  given  in  evidence  by 
the  administrator,  in  an  action  against  the  person  thus  interrogated. 
Wood  V.  Weld,  367. 

See  Charitable  and  Pious  Uses,  3. 

EXAMINATION. 
See  Evidence. 

EXECUTION. 

Where  an  execution  is  extended  on  two  tracts  of  land,  it  is  not  necessary 
that  the  same  persons  should  be  appraisers  on  both  tracts.  Hodgdon 
V.  Robinson,  320. 

See  Assumpsit;  Bail;  Bond:  Judgment,  1;  Receiptor,  2;  Re- 
,  view,  2-6. 

EXECUTOR   AND   ADMINISTRATOR. 

1.  An  heir  cannot  maintain  an  action,  in  a  common-law  court,  against  an 
administrator,  to  recover  her  share  of  property  belonging  to  the  intes- 
tate, which  the  administrator  improperly  omitted  to  account  for  on 
his  settlement  in  the  Probate  Court.     Henry  v.  Arms,  39. 


INDEX   TO   CASES.  543 

2.  H.  contracted  to  purchase  land  of  A.,  and  gave  him  notes  for  the  price. 

H.  died,  A.  was  appointed  administrator  of  his  estate,  which  was  set- 
tled in  the  insolvent  course.  A.  exhibited  his  notes  as  claims,  which 
were  allowed,  and  a  dividend  of  eighty  per  cent  was  paid  to  him.  A. 
settled  his  account  without  accounting  for  the  land,  which  he  subse- 
quently sold  for  his  own  benefit. 
Held,  that  an  heir  of  H.  could  not  maintain  assumpsit,  for  money 
had  and  received,  against  A.,  for  her  share  of  the  proceeds  of  the 
land.     lb. 

3.  An  administrator  in  the  solvent  course,  who  has  suifered  judgment  to 

be  recovered  against  himself  by  default,  cannot  plead  want  of  assets 
to  an  action  of  debt  against  him  on  such  judgment,  suggesting  waste. 
Raymond  v.  Stiles,  87. 

4.  The  representatives  of  an  administrator,  as  far  as  they  have  assets,  are 

liable  for  his  waste.  An  action  of  debt  (suggesting  waste  by  the  first 
administrator)  may  be  brought  against  the  administrator  of  an  ad- 
ministrator, upon  a  judgment  recovered  against  the  first  adminis- 
trator,    lb. 

5.  A  scire  facias  may  issue  within  one  year  after  a  grant  of  administration, 

to  make  the  administrator  a  party  to  a  suit  commenced  against  the 
intestate,  and  pending  at  his  death.  The  statute  prohibiting  the 
commencement  of  actions  against  administrators  until  the  end  of  one 
year  does  not  apply.     Parker  v.  Willard,  212. 

6.  An  executor,  whose  authority  is  derived  solely  from  an  appointment  in 

Massachusetts,  cannot  sue  in  New  Hampshire.   Carpenter  y.  Wild,  365. 

See  Hail,  1;    Exhibition   of   Claim;   Legacy,  1;   Probate   Court, 

2-4;  Waste. 

EXEMPTION. 
See  Taxation,  1-3. 

EXHIBITION   OF    CLAIM. 

Neglect  to  exhibit  a  demand  to  an  executor  within  three  years  from  pro- 
bate is  a  bar,  though  the  creditor,  who  lived  in  Massachusetts,  died  dur- 
ing the  three  years,  and  his  administrator  exhibited  the  demand  within 
three  years  from  the  grant  of  administration.     Phillips  v.  Leavitt,  130. 

EXTENT. 

See  Execution. 

EXTRA   TERRITORIAL. 
See  Judgment,  5,  6. 

FALSE   RETURN. 
See  Bail,  9. 

FERRY. 

See  Charter;  Constitutional  Law,  4. 


544  INDEX   TO   CASES. 

FIGURES. 
See  Ad  Damnum. 

FINDER. 
See  Bees. 

FOREIGN  ADMINISTRATOR. 

See  Executor,  6. 

FOREIGN   ATTACHMENT. 

See  Trustee  Process. 

FORGERY. 
p.  held  genuine  negotiable  notes  against  A.     He  forged  others  like  them, 
and,  on  payment,  gave  up  the  forged  ones,  and  retained  the  genuine. 
Held,  that  P.  committed  the  crime  of  forgery.     State  v.  Page,  149. 

FRAUDULENT   CONVEYANCE. 

^  See  Review,  6. 

FREIGHT. 
See  Charter  Party;  Part  Owners  of  Vessel. 

FRENCH    REPUBLIC. 

See  Salvage. 

GOSPEL   MINISTRY. 
See  Charitable  and  Pious  Uses,  1. 

HEIR. 

See  Executor,  1,  2;  Partition. 

HONEY. 

See  Bees. 

HOUSE. 
See  Right  of  Support. 

HUSBAND. 

See  Pauper,  1. 
I 

IMPANELLING. 

See  Jury,  1,  2. 

IMPOUNDING. 

1.  The  horse  of  S.  was  taken  damnf/r  fenmid  in  L.'s  cornfield;  and,  there 
being  no  pound  in  the  town,  was  confined  in  L.'s  barn,  situate  in  the 


INDEX   TO   CASES.  645 

same  cornfield.     L.  immediately  sent  S.  the  following  written  notice, 
properly  dated,  signed,  and  directed:  — 

"  A  dark -red  horse  is  taken  up  doing  damage  in  my  cornfield,  and  is  impounded, 
the  damage  estimated  at  $2.     The  horse  is  supposed  to  be  yours.  .  .  ." 

S.  immediately  came  to  L.'s  barn,  where  the  horse  was,  and  conversed 
with  L.,  but  made  no  objection  to  any  uncertainty  in  the  notice,  or 
required  any  more  particular  information. 

Held,  that,  if  there  was  any  defect  in  this  notice,  it  was  cured  by  S.'s 
appearance,  without  making  any  objections.     Smith  v.  Ladd,  244. 

2.  Whether  -written  notice  is  necessary  in  all  cases,  qucere.     lb. 

3.  In  a  case  of  impounding,  the  report  of  appraisers  appointed  by  a  justice 

is  conclusive  as  to  the  trespass  and  the  quantum  of  damages.     lb. 

IMPRISONMENT. 
See  Bond  ;  Receiptor,  2. 

INDICTMENT. 

The  omission  of  the  words  "this  is  a  true  bill,"  before  the  signature  of  the 
foreman  of  the  grand  jury  to  an  indictment,  held,  immaterial  after 
veidict.     Stat^  v.  Keyes,  135. 

INDIVISIBLE    CONTRACT. 
See  Charter  Party;  Covenants  for  Title. 

INDORSEMENT. 
See  Arbitration  and  Award,  2. 

INDORSER   OF   WRIT. 

1.  The  indorser  of  a  writ  is  liable,  though  a  set-off  was  pleaded  in  the 

original  action.     Kingsbury  v.  Cooke,  217. 

2.  An  indorse*-  of  a  writ  cannot,  upon  scire  facias  against  him,  avail  him- 

self of  any  thing  which  goes  to  show  that  there  ought  not  to  have 
been  judgment  for  the  defendant  in  the  original  action.     lb. 

3.  The  indorser  of  the  original  writ  is  not  liable  for  costs  which  the  orig- 

inal defendant  recovers  upon  review.     Chace  v.  Ellis  (cited),  112. 

INFANT. 
See  Parent  and  Child;  Pauper,  2. 

INFRINGEMENT. 
See  Charter;  Constitutional  Law,  4. 

INTERROGATORIES. 
See  Evidence. 

JAIL    LIMITS. 

See  Prison  Bond. 
35 


546  INDEX   TO   CASES. 

JOINDER   OF   DEFENDANTS. 
See  Penal  Action,  2;  Assumpsit. 

JOINT   CONTRACTORS. 
See  Judgment,  4. 

JOINT   TORTFEASORS. 
See  Judgment,  4. 

JUDGE   OF  PROBATE. 
See  Probate  Court. 

JUDGMENT. 

1.  Judgment  in  audita  querela  —  "that  execution  be  vacated,  the  judg- 

ment having  been  obtained  by  fraud  and  deceit  "  —  is  a  bar  to  an  ac- 
tion of  debt  upon  the  judgment  thus  impeached.    Bush  v.  Mason,  117. 

2.  An  action  for  money  had  and  received  does  not  lie  to  recover  back 

money  paid  under  a  judgment  for  costs  which  ought  not  to  have  been 
taxed.     Porter  v.  Leicis,  148,  n. 

3.  Nor  does  such  an  action  lie,  even  though  the  costs  were  allowed  in  con- 

sequence of  a  false  certificate  of  the  creditor.     Robinson  v.  Clarke,  147. 

4.  B.,  O.,  P.,  and  R.  unlawfully  caused  H.  to  be  arrested,  and  compelled 

him  to  pay  money  to  obtain  his  release.  H.  brought  assumpsit,  for 
money  had  and  received,  against  B.  only,  and  had  judgment  to  re- 
cover back  the  payment.  While  a  suit  was  pending  against  the  bail 
of  B.,  to  obtain  satisfaction  of  this  judgment,  H.,  at  the  request  of 
B.,  brought  an  action,  for  money  had  and  received,  against  R.,  which 
was  to  be  prosecuted  at  B.'s  risk,  and  for  his  sole  benefit. 
Held,  that  the  latter  action  was  not  maintainable.  Holden  v.  Reed, 
278. 

5.  An  action  was  commenced  in  Vermont  against  a  citizen  of  New  Hamp- 

shire ;  the  defendant's  property  in  Vermont  was  attached,  and  a 
notice  left  at  his  house  in  New  Hampshire;  but  there  was  no  personal 
service  on  him  in  Vermont.  The  defendant  appeared,  and  put  in  a 
plea  to  the  jurisdiction,  alleging  that  he  was  an  inhabitant  of  New 
Hampshire,  and  that  the  property  attached  was  not  his.  The  plain- 
tiff replied  that  the  property  was  defendant's.  This  issue  having  been 
found  for  plaintiff,  it  was  decided  that  the  court  had  jurisdiction. 
The  defendant  then  pleaded  to  the  merits,  upon  which  judgment  was 
rendered  against  him. 
Held,  that  the  Vermont  court  had  no  jurisdiction  over  the  defendant,  to 
render  judgment  for  any  other  purpose  than  as  affects  the  property 
attached;  that  the  Vermont  suit  was,  in  its  nature,  a  proceeding  in 
rem;  that  the  defendant's  appearance  did  not  change  it  into  a  suit  in 
personam,  nor  enlarge  the  jurisdiction;  and  that  the  Vermont  judg- 
ment could  not  be  enforced  in  New  Hampshire.     Bryant  v.  Ela,  396. 


INDEX   TO   CASES.  547 

6.  A  judgment  rendered  in  Vermont  in  a  qui  tarn  action,  for  penalties  in- 
curred by  a  violation  of  the  usury  statute  of  that  State,  will  not  be 
enforced  in  New  Hampshire,  though  the  Vermont  court  had  jurisdic- 
tion over  the  defendant,  and  the  judgment  was  good  in  Vermont.    lb. 
See  Review,  1;  Trustee  Process. 

JURISDICTION. 
See  Judgment,  5,  6;  Probate  Court,  2,  4;  Town,  3. 

JUROR. 
See  Jury. 

JURY. 

1.  At  the  time  of  impanelling  a  jury,  a  juror,  in  answer  to  a  question  by 

the  defendant,  declared  that  he  had  neither  formed  nor  expressed  any 
opinion,  and  that  he  never  had  heard  the  cause  tried.  In  fact,  the 
juror  had  heard  the  cause  tried  on  a  former  occasion,  and  had  de- 
clared to  sundry  persons  that,  in  his  opinion,  the  plaintiff  must  and 
ought  to  recover,  and  that,  if  he  had  been  on  the  jury  (which  did  not 
agree),  he  would  have  kept  them  together  till  they  had  agreed  for  the 
plaintiff. 

2.  Held,  that  these  facts  did  not  give  cause  for  setting  aside  a  verdict  in 

favor  of  the  plaintiff,  though  the  defendant  were  ignorant  of  them  till 
after  the  verdict.  Temple  v.  Sumner,  226. 
By  Smith,  C.  J.  As  a  general  rule,  what  might  be  taken  advantage  of 
by  way  of  challenge  shall  not  avail  on  motion  for  a  new  trial,  with  the 
exception,  only,  of  the  cases  where  there  has  been  gross  misconduct 
in  the  other  party  as  w^ell  as  in  the  juror,  such  as  bribery,  &c. ;  and 
the  knowledge  or  ignorance  of  the  party,  as  to  the  existence  of  the 
causes  of  challenge  at  the  time  of  impanelling  the  jury,  will  make  no 
difference  in  the  case.     lb. 

3.  A  verdict  will  not  be  set  aside  because  a  juror  sat  on  a  former  trial,  when 

the  verdict  was  the  other  way.     Cold  well  v.  Caldwell  (cited),  239. 

4.  Nof  because  a  juror  sat  on  a  former  trial,  when  the  verdict  was  in  favor 

of  the  same  party.  Porter  v.  Greenough,  23S,  n. ;  Gregory  v.  Wells 
(cited),  237,  239. 

5.  Nor  because  one  of  the  jury  was  not  duly  chosen  and  returned.     State 

V.  Clarke  (cited),  240. 

LEGACY. 

1.  Assumpsit  lies  for  a  legacy  against  an  executor;   but  it  seems  that, 

unless  there  is  a  promise  in  fact,  the  sufficiency  of  the  assets,  if  dis- 
puted, must  be  ascertained  by  previous  proceedings  in  the  Probate 
Court.      Twombly  v.  Baker,  122. 

2.  A  bequest  of  a  sum  of  money,  to  be  paid  in  three  years  after  the 

testator's  decease,  is  a  vested  legacy;  and,  if  the  legatee  die  before 
the  expiration  of  the  three  years,  the  money  will  go  to  his  represent- 
ative,    lb. 

See  Devise;  Probate  Court,  2,  3. 


648  INDEX   TO   CASES. 

LEVY. 

See  Execution;  Review,  2-6. 

LICENSE   TO    SELL   REAL   ESTATE. 
See  Waste. 

LIEN. 
See  Tender,  3. 

LIMITATION,    STATUTE    OF. 
See  Executor,  5;  Exhibition  of  Claim. 

LIQUOR,   UNLICENSED    SALE   OF. 
See  Penal  Action. 

LIST. 
See  Taxation,  4. 

MARRIED   WOMAN. 
See  Pauper,  1. 

MEETING. 
See  Proprietors  of  Common  Lands,  2. 

MINISTER   AND   MINISTRY. 

See  Charitable  and  Pious  Uses;  Constitutional  Law,  1-3; 

Taxation,  1-3. 

MINISTERIAL   LANDS. 
See  Charitable  and  Pious  Uses,  1;  Town,  4. 

MINOR. 
See  Parent  and  Child. 

MONEY   HAD   AND   RECEIVED. 
See  Executor,  1,  2;  Judgment,  2-4. 

MONEY   PAID. 

See  Assumpsit. 

MORTGAGE. 
See  Review,  3;  Trustee  Process. 

NEGLIGENCE. 
See  Selectmen. 

NEUTRAL. 

See  Salvage. 


INDEX   TO   CASES.  549 

NEW  TRIAL. 
New  trial  granted  on  terms.     Wilson  v.  Eastman,  287. 

See  JuRV. 

NON  EST  INVENTUS. 
See  Bail,  6-9. 

NOTES. 

See  Promissory  Notes. 

NOTICE. 

See  Impounding,  1,  2;  Probate  Court,  1-3. 

NOTICE    OF    SETTLEMENT    OF   ACCOUNT. 
See  Probate  Court,  1-3. 

NOTIFICATION    OF  MEETING. 
See  Proprietors  of  Common  Lands,  2. 

OPINION. 

See  Jury,  1-4. 

ORDAINED   MINISTER. 
See  Taxation,  1-3. 

PARENT   AND   CHILD. 

Where  a  minor  has  contracted  for  his  own  services,  and  his  employer  has 
agreed  to  pay  him  therefor,  his  earnings  cannot  be  attached,  on  trustee 
process,  by  a  creditor  of  his  father.     Frost  v.  Brown,  113. 

PARISHES. 

See  Charitable  and  Pious  Uses;  Constitutional  Law,  1-3. 

PART   OWNERS    OF   VESSEL. 
A.,  B.,  and  C.  were  joint  owners  of  a  vessel,  of  which  A.  was  master. 

The  vessel  carried  a  cargo  which  was  jointly  owned  by  B.,  C,  and  D. 
Held,  that  A.  could  maintain  assumpsit  against  B.,  C,  and  D.,  to  recover 

one-third  of  the  freight.     Oilman  v.  Leavitt,  304. 

PARTITION. 

1.  It  seems  that  the  Probate  Court,  in   making  partition  of  real  estate 

among  heirs,  may  determine  whether  certain  real  estate,  claimed  by 
one  of  the  heirs  as  his  own,  did,  in  fact,  belong  to  the  intestate  at 
the  time  of  his  death.     Belloios  v.  Grant,  115. 

2.  In  this  case,  the   Superior   Court,   upon  an  appeal  from  the  Probate 

Court,  delayed  rendering  judgment  until  the  claimant  had  tried  the 
title  in  a  suit  at  law.     lb. 

See  Right  of  Support. 


660  INDEX   TO   CASES. 

PARTNERS. 
See  Pakt  Owneks  of  Vessel. 

PARTY  WALL. 
See  Right  of  Support. 

PAUPER. 

1.  A  husband  is  not  liable,  under  the  pauper  statutes,  for  the  support  of 

his  wife's  grandmother,  although  his  wife,  at  marriage,  was  possessed 
of  sufficient  property,  which  he  now  holds  in  her  right.  Chesterfield 
V.  Hart,  350. 

2.  An  infant,  of  sufficient  property,  is  liable,  under  the  pauper  statutes, 

for  the  support  of  her  grandmother.     Ih. 
See  Town,  3. 

PAYMENT. 

See  Arbitration  and  Award,  2;  Bond. 

PAYMENT   IN    SPECIE. 
See  Bank. 

PAYMENT  IN   SPECIFIC   ARTICLES. 
See  Tender,  3. 

PENAL   ACTION. 

1.  The  \Kords  "  against  the  form  of  the  statute  "  are  not  indispensable  in 

a  declaration  in  debt  to  recover  a  statute  penalty.  An  allegation, 
that  the  offence  was  committed  "  against  the  law  in  that  behalf  made 
and  provided,"  is  sufficient.     Brown  v.  Holt,  53. 

2.  Two  persons  maybe  jointly  sued,  in  an  action  of  debt,  to  recover  the 

statute  penalty  for  a  single  unlicensed  sale  of  liquor,     lb. 
See  Constitutional  Law,  5;  Judgment,  6. 

PENALTY. 
See  Judgment,  6;  Penal  Action. 

PIOUS  USES. 
See  Charitable  and  Pious  Uses. 

PLEADING. 

Where  a  note  declared  on  is  stated  to  have  been  made  payable  in  nine 
months  after  date,  it  need  not  be  averred  that  the  time  has  elapsed 
before  the  commencement  of  the  action.  This  appears  from  the  date 
of  the  writ.     Hale  v.  Vesper,  283. 

See  Ad  Damnum;   Demurrer;    English  Language;   Penal  Action; 
Recognizance;  Replevin;   Venue. 


INDEX   TO   CASES.  551 

POUNDS. 
See  Impounding. 

PRACTICE. 

See  Amendment;  Indorser  of  Writ;  Partition,  2;  Writ. 

PRESBYTERIAN. 
See  Constitutional  Law,  2. 

PRESUMPTION. 
See  Probate  Court,  1. 

PRINCIPAL    AND   SURETY. 

See  Surety. 

PRISON   BOND. 

An  imprisoned  debtor,  who  had  given  bond  for  the  liberty  of  the  jail 
limits,  was  entitled  to  his  discharge,  if  the  creditor  failed  to  make  pay- 
ment in  advance,  for  his  support.  Six  weeks  before  another  payment 
by  the  creditor  would  be  due,  the  debtor,  with  intent  to  deceive  the 
creditor,  and  induce  him  to  believe  there  had  been  an  escape,  and  so 
not  to  advance  any  more  money,  gave  out,  and  caused  it  to  be  reported, 
that  he  was  about  to  go  out  of  the  limits  to  Connecticut,  and  on  the 
same  day  concealed  himself  in  a  swamp  within  the  limits,  and  continued 
there  concealed,  without  the  plaintiff's  knowledge,  for  six  weeks,  and 
until  the  day  after  the  time  for  making  the  next  payment.  The  creditor 
was  thereby  deceived,  and  induced  to  believe  that  the  debtor  had  escaped, 
and  so  omitted  to  advance  the  money  for  the  debtor's  support.  After 
the  creditor  had  so  failed  to  make  payment,  the  debtor,  claiming  that 
he  was  for  this  reason  discharged,  went  out  of  the  limits.  The  debtor's 
sureties  in  the  prison  bond  were  privy  to  this  deception  and  concealment 
on  the  part  of  the  debtor.  In  an  action  on  the  prison  bond  against  the 
sureties,  held,  that  the  sureties  could  not  avail  themselves  of  an  omission 
by  the  creditor,  thus  induced  by  the  fraud  of  the  debtor,  and  that  the 
creditor  could  recover  against  the  sureties  for  an  escape.  Eldridge  v. 
Bush,  288. 

See  Bail. 

PROBATE   COURT. 

1.  If  no  order  of  notice  appears  on  the  minutes  of  the  Probate  Court,  the 

Superior  Court  (on  appeal)  are  not  bound  to  presume  that  notice  has 
been  given.     Symmes  v.  Libbei/,  1.37. 

2.  If  the  judge  of  probate  omit  to  give  notice  to  a  legatee  previous  to 

the  allowance  of  an  executor's  account,  the  decree  will  not,  for  that 
reason,  be  reversed  or  repealed;  for  it  is  not  binding  on  those  not 
notified.     The  remedy  for  the  legatee  not  notified  is  by  application  to 


552  INDEX   TO   CASES. 

the  judge  of  probate  to  revise  and  correct  the  former  account.  In 
such  case,  the  judge  of  probate  can  review  his  own  doings,     lb. 

3.  A  testator  devised  real  estate,  the  interest  arising  from  his  public  and 

private  securities,  with  all  the  remainder  of  his  personal  estate,  to 
his  wife,  during  widowhood,  and  devised  to  his  daughter  and  her 
heirs  all  the  residue,  remainder,  and  reversion  of  his  estate,  real 
and  personal,  with  a  devise  over  in  the  event  of  her  deatli  without 
leaving  issue. 
Held,  that  the  daughter,  during  her  mother's  widowhood,  had  such  a 
present  vested  interest  in  remainder  as  entitled  her  to  notice  of  the 
settlement  of  the  executor's  account,     lb. 

4.  Where  an  administrator  has  settled  his  final  account  in  the  Probate 

Court,  and  a  decree  has  been  made,  directing  him  to  pay  the  balance 
to  certain  part:"!S,  the  Probate  Court  is  not  the  proper  tribunal  to 
try  the  question  whether  the  administrator  has  fulfilled  the  decree. 
Willard  v.  Kingsbury,  223. 

See  Executor,  1,  6;  Evidence;  Partition. 

PROCEEDING   IN   PERSONAM. 

See  Judgment,  5. 

PROCEEDING   IN    REM. 

See  Judgment,  5. 

PROMISSORY   NOTES. 

A  promissory  note  was  made  payable  to  A.,  or  bearer,  "  on  demand,  at 
W.,  after  sixty  days."  The  maker  then  lived  at  W.  in  Massachusetts, 
but,  after  the  expiration  of  the  sixty  days,  removed  to  New  Hampshire, 
leaving  property  in  the  hands  of  a  resident  of  \V.,  to  pay  all  his  notes 
that  might  be  presented. 

Held,  that  the  holder  of  the  note,  who  had  no  notice  of  the  deposit  left 
in  W.,  need  not  make  a  demand  at  W.,  or  anywhere  else,  before  suing 
the  maker.      Wallon   v.  Henderson,  168. 

See  Pleading;  Tender,  3. 

PROPERTY. 

See  Bees;  Tender,  3. 

PROPRIETORS   OF  COMMON   LANDS. 

1.  Proprietors  of  common  lands  can  convey  by  vote.     Proprietors  of  Cor- 

nish V.  Kenrick,  270. 

2.  Semble,  no  statute  required  the  particular  matters  to  be  done  at  propri- 

etors' meetings  to  be  inserted  in  the  notification.     lb. 

QUI   TAM   ACTION. 
See  Penal  Action. 


INDEX   TO   CASES.  653 

REASONABLE   TIME. 
See  Bank  ;  Charter. 

RECEIPTOR. 

1.  A  sheriff  attached  goods  and  delivered  them  to  the  creditor,  taking  his 

receipt,  which  contained  a  promise  "  to  see  them  forthcoming  when 
called  for."  Afterwards  the  sheriff  attached  the  same  goods  on  a  writ 
in  favor  of  another  creditor.  The  receiptor  knew  of  the  second 
attachment.  Subsequently  the  first  suit  was  compromised,  and  the 
receiptor  delivered  the  goods  to  the  debtor.  After  this  delivery,  the 
sheriff  demanded  the  goods  of  the  receiptor,  in  order  to  levy  on  them 
to  satisfy  the  judgment  of  the  second  attaching  creditor,  and,  upon 
the  receiptor's  refusal,  brought  assumpsit. 
Held,  that  the  receiptor  was  not  liable.  The  delivery  to  him  was  for  a 
special  purpose,  viz.,  to  hold  them  to  satisfy  his  action,  and  to  indem- 
nify the  sheriff  against  the  debtor;  and  these  objects  had  both  been 
fulfilled.     French  v.  Watkins,  49. 

2.  Receiptors  refused  to  deliver  attached  property  when  demanded  by  the 

sheriff  on  the  execution.     Thereupon,  the  debtor's  body  was  taken  on 

the  execution. 
Smith,  C.  J.,  was  of  opinion  that  taking  the  body  did  not  discharge 

the  receiptors  from  their  liability  to  the  officer. 
The  cause  having  been  compromised,  no  decision  was  given.      Winch  v. 

Wright,  175. 

3.  A  sheriff  who  delivers  attached  goods  to  a  receiptor  does  so  at  his  own 

risk,  unless  the  taking  of  the  receipt  is  directed  or  ratified  by  the 
creditor.     Porter  v.  Tarlton,  372. 

4.  An    officer   attached   a   horse,   and   delivered   it   to   a   receiptor,   who 

engaged  to  return  it  on  demand.  The  receiptor  allowed  the  horse  to 
go  back  into  the  debtor's  possession,  where  it  was  attached,  by 
another  officer,  upon  another  writ  against  the  debtor.  The  receiptor 
then  took  the  horse  from  a  stable,  where  it  had  been  placed  by  the 
second  officer,  and,  without  any  demand  on  him,  delivered  the  horse 
to  the  first  officer,  who  received  it  in  ignorance  of  the  second  attach- 
ment. Subsequently,  the  second  officer  regained  possession  of  the 
horse. 
Held,  that  the  delivery  by  the  receiptor  to  the  first  officer  was  not  a 
compliance  with  the  receiptor's  engagement.     Swetl  v.  Horn,  429. 

RECOGNIZANCE. 

1.  Debt  lies  on  a  recognizance  to  the  State.     State  v.  Stevens,  251. 

2.  The  declaration  in  debt  on  recognizance  need  not  state  the  occasion  of 

taking  the  recognizance.     Ih. 

3.  Scire  facias  upon  a  recognizance  to  appear  at  a  term  of  court,  and 

answer  to  all  such  matters  as  should  be  objected  against  the  recog- 
nizor, and  not  depart  without  leave.     Plea,  that,  at  that  term,  noth- 
ing was  objected  by  the  State  against  the  recognizor. 
Plea  held  bad.     State  v.  Varney,  322. 


654  INDEX   TO   CASES. 

RECOMMITMENT. 
See  Arbitration  and  Award,  1. 

REFEREXCE. 
See  Arbitration  and  Award. 

REFUSAL. 
See  Bank. 

RELATION. 
See  Pauper. 

RELEASE. 
See  Bond;  Judgment,  4;  Receiptor,  2. 

RELEVY. 
See  Review,  2-6. 

RELIGIOUS   SOCIETY. 

See  Constitutional  Law,  1-3;  Charitable  and  Pious  Uses. 

REMITTITUR. 

A  defendant,  who  filed  a  set-off,  had  a  verdict  for  a  balance  of  S2.36.  He 
remitted  S2.20,  and  took  judgment  for  10  cents.  Upon  review, 
brought  by  the  original  plaintiff,  the  defendant  had  a  verdict  for 
S4.50. 

Held,  that  the  remittitur  in  the  original  action  did  not  bind  defendant,  so 
that  he  could  not  recover  more  on  the  review;  and  that  he  was  enti- 
tled to  execution  for  $1.40.     Dame  v.  Twombly,  262. 

REPEAL    OF   PROBATE   DECREE. 
See  Probate  Court,  2. 

REPEAL   OF    STATUTE. 
See  Constitutional  Law,  5. 

REPLEVIN. 

1.  Replevin  for  "  ninety-two  cribs  of  pine  boards."     Defendant  avowed 

taking  the  boards.  Description  held  good,  after  verdict.  Lewis  v. 
Clagelt,  187. 

2.  In  replevin,  defendant  avowed  attaching  the  goods  as  the  property  of  a 

stranger,  "  whose  property  they  were."  Plaintiffs  pleaded,  property 
of  plaintiffs  and  not  of  stranger.  Defendant  replied,  property  of 
stranger.  Issue  on  stranger's  property,  found  for  plaintiffs.  Held, 
sufficient  to  warrant  judgment  for  plaintiffs,  although  the  declara- 
tion did  not,  except  by  reference  to  the  writ,  allege  property  of  plain- 
tiffs.    Ih. 


INDEX   TO   CASES.  555 

3.  Writ  of  replevin  dated  Aug.  4.  Defendant  avowed  taking  on  Aug.  5. 
After  verdict  for  plaintiffs,  held,  that  mistaken  date  in  avowry  was 
not  ground  for  arresting  judgment.     lb. 

REPORT   OF   APPRAISERS. 
See  Impounding,  3. 

REPORT   OF   COMMITTEE. 
See  Town,  4. 

REPORT  OF  REFEREES. 
See  Arbitration  and  Award,  1. 

REQUEST. 

See  Assumpsit. 

RESCUE. 

See  Salvage. 

RETROSPECTIVE   LAW. 
See  Constitutional  Law,  5. 

RETURN   OF   OFFICER. 
See  Bail,  6-9. 

REVERSAL. 
See  Review,  1,  2. 

REVIEW. 

1.  A  partial  reversal,  on  review,  of  the  result  reached  in  the  original  suit, 

does  not  operate  as  a  technical  reversal  of  the  original  judgment. 
Debt  may  be  maintained  on  the  original  judgment,  notwithstanding 
the  result  of  the  review.     Hart  v.  Little,  52. 

2.  The  partial  reversal,  on  revieW,  of  the  result  reached  in  the  original 

suit,  does  not  affect  the  levy  made  under  the  original  judgment;  and 
a  relevy  on  the  same  premises,  to  satisfy  the  judgment  rendered  on 
review,  has  no  greater  effect  than  a  levy  on  a  judgment  recovered  in 
any  other  action.     Hodgdon  v.  Lougee,  104;  Hacen  v.  Libbey,  109. 

3.  Such  relevy  will  not  prevail  as  against  a  mortgage  executed  by  the  orig- 

inal plaintiff  after  the  rendition  of  the  judgment  in  review,  but  before 
the  relevy.      Hodgdon  v.  Lougee,  104. 

4.  Nor  will  such  relevy  prevail  as  against  an  attachment  made  during  the 

pendency  of  the  review  to  secure  a  debt  due  from  the  original  plaintiff. 
Haven  v.  Libbey,  109. 

5.  Nor  will  such  relevy  defeat  the  right  to  dower,  on  the  part  of  the  wife 

of  the  original  plaintiff.     Drew  v.  Munxey,  317. 

6.  But  if  the  land  levied  on  to  satisfy  the  original  judgment  is  conveyed 


556  INDEX   TO   CASES. 

by  the  original  plaintiff  without  consideration,  after  judgment  against 
him  on  review,  such  conveyance  is  fraudulent,  and  invalid  as  against 
a  levy  under  the  judgment  in  review.  Footman  v.  Leathers  (cited), 
111. 
See  Amendment;  Bail,  5;  Constitutional  Law,  5;  Demurrer; 
Indorsee  of  Writ,  3;  Remittitur. 

RIGHT   OF    SUPPORT. 

D.  and  M.  each  owned  one-half  of  a  dwelling-house.  It  had  been  built  all 
together;  two  rooms  on  the  floor,  chimney  in  the  middle,  entry  on 
the  front  side,  from  which  stairs  to  both  chambers,  and  entrance  into 
both  rooms.  D.'s  title  to  his  part  was  under  a  set-off  on  execution. 
The  division  was  by  an  imaginary  line  running  through  the  middle  of 
the  front  door,  entry,  stairs,  chimney,  &c.  The  house  was  old,  and 
needed  repairs.  M.'s  part  was  not  worth  repairing;  but  D.'s  part 
was  tenan table.  The  fire-wards,  upon  view  of  M.'s  part,  were  of 
opinion  that  it  was  dangerous  for  want  of  repairs,  and  ordered  it  to 
be  repaired,  or  otherwise  rendered  not  dangerous  on  account  of  fire. 
M.  took  down  his  part  to  the  line.  He  left  half  the  materials  of  the 
entry  for  D. ;  sawed  through  the  plate,  girts,  stairs,  »fec.,  but  did  not 
take  down  the  chimney.  He  did  these  things  carefully,  doing  as  little 
damage  as  possible  to  D.'s  part  of  the  house. 

Held,  that  D.  could  maintain  trespass  against  M.     Doe  v.  Morrell,  255. 

SALVAGE. 

An  American  vessel,  captured  by  a  French  privateer,  Nov.  25,  1800,  was 
rescued  from  the  captors,  Nov.  28,  1800,  by  the  captain,  who  was  also 
a  part  owner,  assisted  by  one  seaman,  the  rescuers  being  ignorant  of 
the  convention  between  the  United  States  and  France,  entered  into 
Sept.  30,  1800.  Upon  a  Ubel  in  the  United  States  District  Court, 
heard  and  determined  prior  to  the  final  ratification  of  the  treaty,  sal- 
vage was  allowed  to  the  seaman.     Kennedy  v.  Richer,  432. 

SATISFACTION. 
See  Bond;  Receiptor,  2. 

SCIRE   FACIAS. 
See  Executor,  5;  Indorser  of  Writ,  2;  Recognizance,  3;    Waste, 

1,3. 

SEAL. 

At  the  conclusion  of  a  charter  party,  it  was  stated  that  the  parties  have 
hereunto  set  their  hands  and  seals,  and  the  word  "  seal  "  was  written 
after  each  signature;  but  no  seal  was  affixed.  Held,  that  the  charter 
party  was  not  a  sealed  instrument,  and  that  an  action  of  covenant 
could  not  be  maintained  on  it.     Culls  v.  Frust,  309. 


INDEX   TO   CASES.  667 

SEAMAN. 
See  Salvage. 

SECT. 

See  Constitutional  Law,  1-3. 

SELECTMEN. 

1.  The  purchaser  of  a  tax  title,  which  proves  invalid  by  reason  of  errors  in 

the  assessment,  cannot  sue  the  selectmen  for  errors  which  are  not  due 
to  fraud,  malice,  or  wilful  neglect.     Harris  v.  Willard,  63. 

2.  Even  if  the  original  purchaser  at  the  tax  sale  could  maintain  such  an 

action,  a  purchaser  under  him  could  not.     lb. 

SETTLED   MINISTER. 

See  Taxation,  1-3. 

SETTLEMENT   OF  EXECUTOR'S   ACCOUNT. 
See  Probate   Court. 

SET-OFF. 
See  Indorser  of  Writ,  1;  Tender,  2. 

SHERIFF. 
See  Assumpsit;  Attachment;  Bail,  6-9;  Receiptor;  Surety;  Writ. 

SHIPPING. 
See  Charter  Party;  Part  Owners  of  Vessel;  Salvage. 

SIGNATURE. 
See  Taxation,  4. 

SPECIE  PAYMENT. 
See  Bank. 

STATUTE. 
See  Penal  Action,  1. 

STATUTE,   REPEAL    OF. 
See  Constitutional  Law,  5. 

STAY   OF   PROCEEDINGS. 
See  Partition,  2. 

SUITS   BY   PART   OWNERS. 
See  Part  Owners  of  Vessel. 

SUPPORT. 
See  Right  of  Support. 


558  INDEX   TO   CASES. 


SURETY. 

The  estate  of  a  surety  in  a  joint  and  several  bond  to  the  sheriff,  for  the 

faithful  execution  of  office  by  a  deputy,  remains  liable  for  defaults  of 

the  principal  which  happen  after  the  death  of  the  surety.     Carr  v. 

Ladd,  45. 

See  Bail,  3,  4;  Prison  Bond. 

SURVIVAL   OF   ACTION. 
See  Bail,  1. 

TAXATION. 

1.  A  minister  of  the  church  and  congregation  in  a  town  is  not  liable  to  be 

taxed.     Kelley  v.  Bean  (cited),  157. 

2.  The  estate  of  a  settled  minister  is  exempt  from  taxation.     Moore  v. 

Poole,  166. 

3.  The  estate  of  an  ordained  minister  of  the  gospel,  not  settled  over  a 

corporate  society,  is  not  exempt  from  taxation.  Kidder  v.  French, 
155. 

4.  Whether  the  signature  of  the  selectmen  to  the  warrant  accompanying 

the  tax  list  is  a  sufficient  signature  of  the  list,  qucere.  Harris  v. 
Willard,  63,  67. 

See  Constitutional  Law,  2,  3;  Selectmkn;  Town,  2. 

TAXATION    OF    COSTS. 
See  JuDGMKNT,  2,  3. 

TAX   SALE. 

See  Selectmen. 

TENDER. 

1.  After  a  writ  has  been  filled  out,  and  delivered  to  an  officer  for  service,  a 

tender  of  the  debt  without  costs  is  good,  unless  the  creditor,  at  the 
time  of  tender,  notifies  the  debtor  that  a  writ  has  issued.  Jones  v. 
Ames,  133. 

2.  R.  sued  L.  on  a  promissory  note.     L.  pleaded  tender  of  debt  and  costs. 

after  suit  commenced,  to  R.'s  attorney.  Replication,  that  L.,  after 
the  commencement  of  R.'s  suit,  and  before  the  tender,  had  sued  R.  in 
assumpsit,  and  that  R.  intended,  after  that  suit  commenced,  to  have 
set  off  this  note  against  that  suit. 
Held,  that  the  replication  was  bad;  and  that,  under  the  statute  of  Dec. 
13,  1790,  the  tender  discharged  the  note,  so  that  it  could  not  be 
pleaded  in  offset  to  L.'s  suit.     Reynolds  v   Libbey,  197. 

3.  W.  was  indebted  to  B.  in  $ upon  a  note,  payable,  in  neat  stock,  at 

a  certain  place  in  S.,  on  a  certain  day,  the  stock  to  be  appraised  by 
indifferent  men.  At  the  time  and  place  appointed,  the  creditor  did 
not  appear;  but  the  stock  was  appraised,  and  turned  out  into  the 


INDEX   TO   CASES.  559 

highway.  E.  took  the  creatures  into  his  possession  to  prevent  their 
starving.  This  was  in  December,  1791.  At  sundry  times,  the  orig- 
inal debtor,  W.,  and  E.  requested  B.  to  take  the  cattle  away,  which 
he  as  often  refused,  declaring  he  would  have  nothing  to  do  with  them. 
B.  sued  W.  on  the  note,  but  became  nonsuit.  In  1795,  having  de- 
livered up  the  note,  he  demanded  the  cattle  of  E.,  who  refused  to  de- 
liver them,  unless  paid  for  keeping. 

On  trover  for  the  cattle  by  B.  against  E.,  held,  that  he  could  not 
recover;  the  property  did  not  vest  in  him;  if  it  did,  he  abandoned. 
Boynton  v.  Emerson,  298. 

Qucere.  of  E.'s  lien  for  expenses  of  keeping.     lb. 

TERMS. 
See  New  Trial. 

"THIS  IS   A   TRUE   BILL" 
See  Indictment. 

TOWN. 

Towns  may  agree  on  divisional  lines,  as  far  as  respects  jurisdiction. 
Currier  v.  Basset,  191. 

The  towns  of  A.  and  S.,  to  settle  a  disputed  line  between  them,  sub- 
mitted the  matter  to  arbitration,  and  afterwards  ratified  the  doings 
of  the  arbitrators.  According  to  the  line  thus  established,  the  resi- 
dence of  C.  would  be  in  A.  Subsequently,  C.  sued  the  selectmen  of 
A.  for  illegally  assessing  him,  and  offered  to  show  that  the  true  char- 
ter line  differed  from  the  agreed  line,  and  that,  by  the  true  line,  his 
residence  would  be  in  S. 

Held,  that  this  evidence  could  not  be  received,  the  establishment  of  the 
agreed  line  being  conclusiye.     lb. 

A  pauper  case  between  the  towns  of  K.  and  P.  turned  on  the  question 
whether  M.  N.  was  to  be  considered  as  living  in  K.  or  P.  during  a 
certain  time,  when  she  lived  on  the  farm  of  one  F. 

Held,  that,  if  it  distinctly  appeared  that  K.  exercised  exclusive  jurisdic- 
tion over  F.  and  his  farm  during  such  time,  and  that  P.  neither  exer- 
cised nor  claimed  any  jurisdiction  during  that  time,  M.  N.  must  be 
regarded  as  having  then  lived  in  K.,  however  the  true  divisional  line 
between  the  towns  might  run.  And  so,  if,  after  a  certain  date,  exactly 
the  contrary  was  true  as  to  jurisdiction,  M.  N.  must  be  regarded  as 
living,  after  that  date,  in  P.     Plaslow  v.  Kingstown,  241. 

A  town  voted  to  divide  the  ministerial  lands  among  the  religious  socie- 
ties having  a  right  or  claim  to  the  same.  A  committee  were  chosen 
to  make  division,  and  they  reported  a  division.  The  town  voted  not 
to  accept  the  report. 

Held,  no  division  or  grant.     Cilley  v.  Cay  ford,  150. 

See  Charitable  and  Pious  Uses,  1;  Pauper. 


660  INDEX    TO   CASES. 

TOWN   OFFICER. 

See  Selectmen. 

TREATY. 

See  Salvage. 

TRESPASS. 
See  Right  of  Support. 

TROVER. 
See  Bees;  Tender,  3. 

TRUSTEE   PROCESS. 

An  unsatisfied  judgment  against  a  trustee  in  foreign  attachment,  for  the 

amount  of  a  debt  secured  by  mortgage,  is  a  bar  to  a  subsequent  action 

by   the   principal   defendant  against  the  trustee  upon   the    mortgage. 

Melven  v.  Darling,  74. 

See  Parent  and  Child. 

UNIVERSALISTS. 
See  Constitutional  Law,  3. 

USURY. 
See  Judgment,  6. 

VENUE. 

1.  It  is  a  sufficient  formal  allegation  of  venue  to  add,  after  describing  a 

note  dated  at  C,  in  Massachusetts,  the  words  "at  said  Plymouth" 
(Plymouth,  N.  H.,  being  mentioned  in  the  writ).  Hale  v.  Vesper, 
283. 

2.  Whether  an  allegation  of  venue  is  necessary  in  transitory  actions  in  this 

State,  queer e.     lb. 

3.  The  omission  of  a  venue  in  assumpsit  cannot  be  taken  advantage  of  on 

general  demurrer.     Griffin  v.  Huse,  285,  n. 

VERDICT,  SETTING   ASIDE. 
See  New  Trial;  Jury. 

VESTED   INTEREST   IN   REMAINDER. 
See  Probate  Court. 

VESTED   LEGACY. 
See  Legacy,  2. 

VESTED   RIGHT   OF   ACTION. 
See  Constitutional  Law,  5. 


INDEX   TO   CASES.  561 

VOID   DECREE. 
See  Probate  Court,  2. 

VOLUNTARY   APPEARANCE. 

See  Judgment,  5. 

VOTE. 
See  Proprietors  of  Common  Lands,  1 ;  Town,  4. 

WAGES. 
See  Parent  and  Child. 

WAIVER. 

See  Impounding,  1 ;  Jury,  2,  5. 

WARRANT   FOR  MEETING. 

See  Proprietors  of  Common  Lands,  2. 

WASTE. 

1.  Scire  facias  against  an  administrator,  suggesting  waste.     Plea:  that  the 

defendant  had  fully  administered  the  personal  estate,  and  that  he  had 
tendered  to  the  officer  lands  of  the  deceased,  more  than  sufficient  in 
value  to  satisfy  the  plaintiff's  execution. 
A  demurrer  to  this  plea  was  sustained  by  a  divided  court.     Brattle  v . 
Willard,  374. 

2.  An  administrator  is  guilty  of  waste,  if  he  fails  to  cause  the  real  estate 

of  the  intestate  to  be  appUed  to  the  payment  of  the  debts,  when  the 
personal  property  is  insufficient.  New  Hampshire  Strafford  Bank  v. 
Mellen,  385. 

3.  Scire  facias  against  administratrix,  suggesting  waste.    Plea  :  that  intes- 

tate left  real  estate  sufficient  to  pay  the  debts,  and  that  the  personal 
estate  had  been  fully  administered.     Plea  held  bad.     lb. 
See  Executor,  3,  4. 

WIDOW. 

See  Dower. 

WITNESS. 
See  Deed. 

WORDS. 

"  Anno  Domini."  See  English  Language. 

"  Contra  Formam  Statuti."     See  Penal  Action. 
"  This  is  a  True  Bill."  See  Indictment. 

See  Ad  Damnum. 

36 


662  INDEX   TO   CASES. 

WRIT. 

1.  An  officer  cannot  justify  under  a  writ  of  attachment  in  which  no  decla- 

ration is  inserted.     Such  a  paper  is  not  a  writ.     Flanders  v.  Herbert, 
205. 

2.  The  legislature,  in  prescribing  forms  of  writs  in  certain  cases,  did  not 

intend  to  deny  all  remedy,  except  such  as  may  be  had  under,  or  agree- 
ably to,  writs  in  such  forms.      Webster  v.  Edson,  370. 

3.  In  a  writ  against  a  sheriff,  directed  to  a  coroner,  and  containing  a  com- 

mand to  attach  the  goods  or  estate  of  the  defendant,  the  words  "  and, 
for  want  thereof,  to  take  the  body  of  the  defendant,"  maybe  omitted, 
and  the  words  "  and  summon  him  to  appear  "  inserted.     lb. 
See  Demurrer,  1;  Indorser  of  Writ. 


INDEX    TO    EXTRACTS.^ 


A. 

ACCOUNT,  Page 

of  administration,  caveat  against  settlement  of,  without  notice  to 

parties  interested 519 

income  and  repairs  of  real  estate  frequently  credited  and  charged  519 

expense  of  assigning  dower  charged 519 

ACTION, 

at  law,  maintainable  against  executor  for  such  acts  or  omissions 

as  cannot  be  redresSed  by  judge  of  probate 500 

for  mala  fide   representation   of   insolvency  or   application   for 

license  to  sell  real  estate 475 

formerly  brought  to  enforce  payment  of  tax 622 

ADMINISTRATION, 

grant  of,  when  absolutely  void 471-473 

application  for,  in  early  times,  usually  oral 517 

early  forms  of  grant 517 

caveat  against  grant  to  particular  persons 517 

grant  in  one  of  the  New  England  colonies  effective  in  the  others, 

by  early  reciprocal  legislation 500-502 

claim  of  eldest  son  to  administer 517 

renunciation  of  right  to  administer 517 

ADMINISTRATOR. 

(See  Executor.) 

ADMISSION, 

of  assets,  by  proceeding  in  the  solvent  course      479,  480,  488,  493,  497 
whether  submission  of  claim  against  estate  to  arbitration  is  an 
admission  of  assets 497,  498 

AGREEMENT, 

to  apply  for  act  of  incorporation 525 

ALLOWANCE, 

to  widow,  how  charged  in  account 477 

in  heu  of  dower 519 

1  For  "Index  to  Cases,"  see  ante. 


564  INDEX   TO   EXTRACTS. 

APPEAL,  PAGE 

whether  jury  trial  is  matter  of  right  on  appeal  from  probate  of 
will 449 

APPRAISAL, 

at  too  low  a  valuation,  whether  administrator  can  take  advantage 
of 475-477 

APPRAISERS, 

who  may  be 475 

how  appointed  formerly 518 

ARBITRATION, 

whether  submission  of  claim  against  estate  to  arbitration  is  an 
admission  of  assets 497,  498 

ARBITRATORS, 

fees  of 522 

ASSETS, 

admission  of,  by  proceeding  in  the  solvent  course     479,  480,  488,  493, 

497 
whether  submission  of  claim  against  estate  to  arbitration  is  an 
admission  of  assets 497,  498 

ATTESTATION. 

(See  Witnesses.) 

B. 

BAR, 

censured  for  slovenly  pleadings 523-525 

BROTHERS   AND   SISTERS, 

preferred  to  grandparents 464, 465 

c. 

CAPACITY, 

to  make  will,  is  only  coextensive  with  capacity  to  alienate        447,  448 

CAVEAT, 

as  to  notice  of  probate  of  will 515 

against  settlement  of  administration  account  without  notice  to 

parties  interested 519 

against  grant  of  administration  to  particular  persons     ....     517 

CENT, 

fractions  of,  need  not  be  stated  in  pleading 521 

CHARGE, 

on  real  estate,  support  of  children  under  seven  is  ...     .       508,  509 

CHILDREN, 

under  seven  years,  sale  of  real  estate  for  support  of  .     .     .       508,  509 


INDEX   TO   EXTRACTS.  565 

CIVIL,  P^«^ 

injuries,   inexpediency  of   making  them   punishable  by  indict- 
ment       521,522 

COMITY, 

early  reciprocal  legislation  making  grant  of  administration  in  one 
New  England  colony  effective  in  all 500-502 

COMMISSIONERS, 

whether  they  can  allow  balance  in  favor  of  estate      .     .     .      481,  482 
how  compellable  to  report 482 

COMMON   LAW, 

what  part  of,  in  force  here 523 

legislative  ignorance  of 531 

COMPUTATION, 

of  degrees  of  kindred 459 

CONDITIONS, 

in  restraint  of  marriage,  criticism  of  the  earlier  English  doctrine     453 

CONTRIBUTION, 

between  specific  devisees  and  specific  legatees,  for  payment  of  debts    486 

CONTROVERSY, 

"value"  of 522 

CORPORATION, 

non-existence  of,  before  charter 525 

municipal,  may  take  by  devise 448 

(See  Incorporation.) 

COSTS, 

when  taxable  against  an  executor  plaintiff 511,512 

CREDITOR, 

claim  of,  how  formerly  enforced  by  judge  of  probate     ....     519 
non-exhibiting,  barred  when   estate    administered  in   insolvent 
course     483-485 

CRIMINAL   LAW, 

of  New  Hampshire,  ancient  and  modern,  compared  .     .     .       526-529 

CUSTOM   OF  LONDON, 

influence  of,  upon  early  New  England  legislators  and  judges      506,  n. 

D. 
DE  MINIMIS   NON   CURAT   LEX 521 

DEBTS, 

privileged,  what  are 477-479 

(See  Creditor.) 
DECREE, 

repeal  of  ex  parie  probate  decree 473-475 


566  INDEX   TO   EXTRACTS. 

DEGREES,  Page 

of  kindred,  computation  of 450 

no  boundary  to  inheritable  degrees 465,  466 

DESCENT, 

origin  of  the  law  of 454-459 

computation  of  degrees  of  kindred 459 

eldest  son's  double  portion 461,462 

exceptions  to  second  general  rule  of  descent 462,  463 

criticism  of  these  exceptions 463,  464 

preference  of  brothers  and  sisters  over  grandparents  .  .  464,  465 
no  boundary  to  mheritable  degrees  of  kindred  ....  465,  466 
the  term  "  descent  "  might  well  be  superseded  by  "  succession  "     454 

DEVASTAVIT. 

(See  Waste.) 

DEVISE, 

municipal  corporations  may  take  by 448 

no  reason  for  using  "  devise  "  in  reference  to  realty,  and  "  give  " 

or  "  bequeath  "  in  reference  to  personalty 450 

the  old  rule  requiring  words  of  inheritance  to  pass  a  fee,  criticised    452 

DEVISEES, 

specific,  contribute  ratably  with  specific  legatees  for  payment  of 
debts 486 

DIVISION, 

of  land,  proportions  how  expressed  in  early  records  .     .     .      516,  519 

DOUBLE   PORTION, 

of  eldest  son 461,462 

DOWER, 

allowance  in  lieu  of 519 

expense  of  assigning,  charged  in  administration  account    .     .     .     519 
as  to  the  injustice  of  the  doctrine  that  the  widow  is  to  be  en- 
dowed of  all  the  lands  of  which  the  husband  was  seised  during 
the  coverture 460,  461 

E. 

ELDEST   SON, 

double  portion 461,462 

claim  to  administer 518 

EMBEZZLEMENT, 

object  of  examining  person  suspected  of  embezzling  estate  of  non 
compos 508 

EX   PARTE, 

repeal  of  ex  parte  probate  decrees 473-475 

EXECUTION. 

(See  Levy.) 


INDEX   TO   EXTRACTS.  567 

EXECUTION  de  bonis  propriis.  Page 

defences  pleadable  to  scire  facias  praying  for  such  execution  487-490, 

491,492,  493-499 
original  judgment  might  in  some  cases  be  so  framed  as  to  admit 

of  issuing  such  execution  without  resorting  to  a  scire  facias  490,  491 
execution  granted  for  failure  to  apply  real  estate  in  payment  of 
debts 509,510 

EXECUTOR   AND   ADMINISTRATOR, 

liability  of,  to  be  sued  at  law  by  parties  interested  in  estate  for 
such  acts  and  omissions  as  cannot  be  redressed  by  the  judge 

of  probate        500 

exemption  of,  from  suit  for  one  year,  semJble  means   one   year 

after  original  grant  of  administration 485 

exemption  does  not  extend  to  suit  on  administration  bond      .     .     486 
cannot  plead  general  pie ne  administravit  .     .       468,470,471,492,493 

may  plead  special  plene  administravit 409,  493 

how  far  liable  for  costs  when  he  is  plaintiff 511,  512 

EXECUTOR  de  son  tort, 

taking  administration,  is  liable  for  what  came  to  his  hands  before 

the  grant  of  administration 466 

taking  administration,  may  plead  any  defence  which  any  other 

administrator  can  plead 406 

as  to  the  doctrine  "  that  administration  purges  the  wrong  "  .     .     466 
whether  punishable  if  issue  on  plea  of  ne  unque  executor  is  found 

against  him 466-468 

statute  of  Feb.  3,  1789,  how  construed 467,468 

c&nnot  plead  general  plene  administravit 468 

may  perhaps  plead  special  plene  administravit 468 

may  plead  delivery  of  goods  to  rightful  executor  before  suit  .     .     469 

EXEMPTION. 

(See  Limitation.) 

F. 

FEE, 

criticism  of  the  old  rule  requiring  words  of  inheritance  to  pass  a 
fee 452 

FEES, 

of  arbitrators 522 

FOREIGN   ADMINISTRATOR, 

early  reciprocal  legislation  making  grant  of  administration  in  one 
New  England  colony  effective  in  another 500-502 

FORMS, 

in  probate  courts,  in  early  times 512-515 

of  probate  of  wills 515,516 

of  grant  of  administration 517 


568  INDEX   TO   EXTRACTS. 

FRACTIONS,  Page 

of  a  cent,  need  not  be  stated  in  pleading      ........     521 

FRAUDS, 

inexpediency  of  making  all  frauds  indictable 521,522 

G. 

"GIVE"    OR   "BEQUEATH," 

no  reason  for  using  these  words  in  reference  to  personalty,  and 
"  devise  "  in  reference  to  realty 450 

GRAND  JURORS, 

duty  of,  to  act  in  some  cases  without  waiting  for  formal  com- 
plaint      525,526 

GRANDPARENTS, 

excluded  by  brothers  and  sisters 464,  465 

GRANT    OF    ADMINISTRATION, 

when  absolutely  void 471-473 

early  form  and  extent  of 517 

oral  application  for 517 

claim  of  eldest  son  to 517 

renunciation  of  person  entitled  to 517 

caveat  against  grant  of  administration  to  particular  persons   .     .     517 
grant  in  one  New  England  colony  made  effective  in  another  by 
early  reciprocal  legislation 500-502 

GUARDIAN, 

testamentary 506,  507,  520 

of  the  estate,  and  of  the  person,  the  offices  may  be  separated  and 

committed  to  differen.t  persons 507 

ward  under  guardianship  may,  upon  reaching  age  of  fourteen, 

elect  guardian 520 

of  insane  person,  whether  judge  can  appoint  unless  inquisitors 

make  return  of  insanity 507,  508 

GUARDIANSHIP  BY   NATURE, 

extent  and  origin  of 505,  506 

IT. 
HEIR, 

remedy  of,  when  estate  incorrectly  represented  insolvent    .     .     .     475 
(See   Dkscent.) 

I. 

INCORPORATION, 

agreement  to  apply  for  act  of 525 

(See    COKPOKATION.) 


INDEX   TO   EXTRACTS.  569 

INDICTABLE   OFFENCES.  Page 

inexpediency  of  making  all  frauds  indictable 521,522 

INDICTMENT, 

(See  Grand  Jurors  ) 

INHERITABLE, 

degrees  of  kindred,  no  boundary  to 4G5,  46G 

INSOLVENT   COURSE  OF   ADMINISTRATION, 

remedy  of  heir  when  estate  incorrectly  represented  insolvent  .     .     475 

executor  de  son  tort  cannot  pursue  insolvent  course 468 

executor  de  son  tort  may  take  out  administration  and  then  pur- 
sue insolvent  course 66 

at  what  time  the  representation  of  insolvency  may  be  made  .  .  480 
whether  commissioners  can  allow  balance  in  favor  of  estate  481,482 
how  commissioners  may  be  compelled  to  make  report    ....     482 

non-exhibiting  creditors  barred 483-485 

failure  of  executor  to  proceed  promptly  with   settlement  after 

adopting  insolvent  course 485 

when  insolvency  pleadable  in  bar  to  sciVe/acias     ....      487-492, 

494-499 
as  to  validity  of  levy  upon  real  estate  of  intestate  to  satisfy  judg- 
ment rendered  in  suit  where  administrator  neglected  to  plead 

insolvency 499 

as  to  the  former  statute  provision  for  the  liquidation  of  claims 
against  insolvent  estates  by  suits  at  law  .     .     .      495,496,498,499 

INVENTORY, 

early  forms  and  method 518,  519 

who  may  be  appraisers 475 

whether  administrator  can  take  advantage  of  appraisal  at  too  low 
a  valuation 475-477 


JOINT   TENANCY, 

and  tenancy  in  common,  as  to  the  distinction  between  .     .       502, 503 

JUDGE   OF   PROBATE, 

oflBice,  when  established 514 

JURY   TRIAL, 

whether  matter  of  right  on  appeal  from  probate  of  will      .     .     .     449 


K. 

KINDRED, 

inheritable  degrees  of,  no  boundary  to 465, 466 

computation  of  degrees  of 459 


570  INDEX   TO   EXTRACTS. 

L. 

LEGATEES,  Page 

specific,  contribute  ratably  with  specific  devisees  for  the  payment 
of  debts 486 

LEGISLATURE. 

(See  Statutes.) 

LETTER    OF   ADMINISTRATION. 

(See  Grant  of  Administration.) 

LEVY, 

on  real  estate  of  intestate,  to  satisfy  judgment  obtained  through 
administrator's  neglect  to  plead  insolvency 499 

LICENSE    TO    SELL   REAL   ESTATE, 

when  granted,  when  denied 509,  510 

liability  of  executor  for  selling  unnecessarily,  or  for  failing  to  sell 

when  necessary 509,  510 

sale  under  license  not  collaterally  impeachable  by  proof  that  there 

was  no  necessity  for  it 510 

may  be  granted  to  obtain  means  of  supporting  children  under 

seven 508,509 

LIMITATION, 

statute  prohibiting  suit  against  administrator  for  one  year  after 

apjjointment  does  not  comprehend  administrator  de  bonis  no 
nor  does  it  extend  to  suit  on  administration  bond 486 

LONDON. 

(See  Custom  of  London.) 

M. 

MAINTENANCE, 

of  children  under  seven,  real  estate  may  be  sold  for       .     .       508,509 

MAJORITY,  TIME    OF, 

origin  of  common  opinion  that  females  are  of  age  at  eighteen     .     506 

MARRIAGE, 

conditions  in  restraint  of,  criticism  of  the  earlier  English  doctrine     453 
of  infant /erne  ward,  supposed  to  terminate  guardianship  .     .     .     520 

MASSACHUSETTS, 

influence  of,  upon  New  Hampshire  law 503 

MAXIMS, 

"  that  the  law  favors  wills  " 450,451 

''  de  minimis  non  curat  lex  " 521 

MUNICIPAL   CORPORATIONS, 

may  take  by  devise 448 


INDEX   TO   EXTRACTS.  571 

N. 
NATURE,  Page 

guardianship  by,  extent  and  origin  of 505,  506 

NE  UNQUE   EXECUTOR, 

plea  of,  consequences  of  failure  to  sustain  it 466-468 

NEW  ENGLAND    COLONIES. 

(See  Foreign   Administrator.) 

NEW   HAMPSHIRE   LAW, 

influence  of  Massachusetts  upon 503 

criminal  law  of  New  Hampshire,  ancient  and  modern,  compared  526-529 

NON-EXHIBITING   CREDITORS, 

barred  when  estate  administered  in  insolvent  course       .     .       483-485 

NON-RESIDENT, 

estate  of,  whether  grant  of  administration  in  wrong  county  is 
void 471,472 

O. 

ORIGIN, 

of  law  of  descent 454-459 

of  office  of  judge  of  probate 512-515 

OVERSEERS, 

appointment  of,  in  early  probate  records 516 

P. 

PARSONS,    CHIEF  JUSTICE, 

his  great  knowledge  of  New  England  law 530,  531 

PARTITION  OF    LAND, 

proportions  how  expressed  in  early  records 516,  519 

PLEA, 

of  ne  unque  executor 466-468 

oi  general  plene  administravit 468,470,471,492,493 

of  special  plene  administravit 469,  493 

of  insolvency  in  bar  to  scire  facias  against  administrator    .      487-492, 

494-499 

PLEADING, 

lecture  to  the  bar  as  to  slovenly  pleading 523-525 

PLENE   ADMINISTRAVIT, 

plea  of,  in  general  form  not  allowable  .     .     .  468,  470,  471,  492,  493 
in  special  form,  when  allowable 469,  493 

PRIVILEGED   DEBTS, 

what  are 477-479 


572  INDEX   TO    EXTRACTS. 

PROBATE   COURT,  Paoe 

in  early  times 503-505,  512-515 

early  forms  used  in 512-517 

repeal  of  ex  parte  decrees 473-475 

PROBATE,   JUDGE    OF, 

when  office  established 514 

incumbents  of  office 514 

PROBATE   RECORDS, 

extracts  from  early  records 512-520 

PROBATE,    REGISTER    OF, 

when  office  established 514 

list  of  incumbents 514 

PROPORTIONS, 

how  expressed  in  early  partitions  of  land 516,  519 

R. 
REAL   ESTATE, 

chargeable  with  support  of  children  under  seven  ....       508,  509 
income  and  repairs  of,  frequently  credited  and  charged  in  admin- 
istration accounts 519 

early  mode  of  expressing  proportions  upon  division  .     .     .       516,  519 
(See  License  to  Sell.) 

RECORDS, 

early  probate,  extracts  from 512-520 

early  court,  strictness  in  technicalities,  looseness  in  essentials     .     523 

REGISTER   OF   PROBATE, 

establishment  of  office 514 

list  of  incumbents 514 

RENUNCIATION, 

of  claim  to  administer 517 

REPEAL, 

of  ex  parte  probate  decrees 473-475 

REPRESENTATION   OF   INSOLVENCY. 

(See  Insolvent  Course.) 


SALE   OF  REAL  ESTATE   UNDER  LICENSE, 

purchaser's  title  not  collaterally  impeachable  by  proof  that  there 

was  no  necessity  for  sale 510 

may  be  made  for  support  of  child  under  seven      ....       508,  509 

SATISFACTION, 

as  to  presumption  that  bequest  to  creditor  is  meant  as  satisfac- 
tion of  debt 452 


INDEX  TO   EXTRACTS.  573 

SCIRE    FACIAS,  Page 

against  administrator,  to  have  execution  de  bonis  propriis,  when 

insolvency  of  estate  may  be  pleaded  in  bar 487-499 

semble  that  the  original  judgment  might,  in  some  cases,  be  so 
framed  as  to  allow  issue  of  such  execution  without  resort  to 

a,  scire  facias 490,  491 

(See  Waste.) 

SEAL, 

on  will,  required  by  statute,  but  of  no  practical  use       ....     448 
instances  of  seals  on  wills  in  early  records 512 

SINGULAR   DEVISES    AND   CLAUSES, 

in  early  wills 516 

SPECIFIC   DEVISEES, 

and  specific  legatees,  contribute  ratably  to  payment  of  debts       .     486 

STATUTES, 

often  enacted  in  ignorance  of  the  common  law 531 

poorly  drawn,  difficulty  of  interpreting 531 

SUCCESSION, 

a  preferable  term  to  "  descent  " 454 


T. 

TAX, 

custom  of  enforcing  payment  by  suit 522 

TENANCY  IN   COMMON, 

how  expressed  in  early  records       516,  519 

TENANCY   IN   JOINTURE, 

and  in  common,  distinction  between 502,  503 

TESTAMENTARY   GUARDIANS 506,  507,  520 

TESTAMENTARY  POWER, 

conferred   by  statute,  is  only  coextensive   with  the   power  of 
alienating 447,  448 

TOWNS, 

may  take  by  devise 448 

V. 

VALUE, 

of  a  controversy 522 

VOID, 

when  grant  of  administration  is 471-473 


574  INDEX   TO   EXTRACTS. 

W. 
WARD,  PAOE 

may  elect  guardian  at  fourteen 520 

marriage  of  infant  female  ward  supposed  to  terminate  guardian- 
ship   520 

WASTE, 

neglect  of  administrator  to  apply  for  license  to  sell  real  estate     .     509 
as  to  the  statute  subjecting  administrator  to  execution  of  his  own 
goods  to  the  value  of  the  waste  committed,  when  it  can  be  as- 
certained ;  otherwise  for  the  whole  debt 489-491 

WIDOW, 

allowance  to,  how  charged  in  account 477 

(See  Dower.) 

WILLS, 

power  to  make,  only  coextensive  with  power  to  alienate     .       447,448 

seal  required  by  statute,  but  is  of  no  practical  use 448 

instances  of  seals  in  early  records 512 

witnesses  need  not  subscribe  all  at  the  same  time  (criticism  on 

this  doctrine) 448 

appeal  from  probate  of,  whether  jury  trial  is  matter  of  right      .     449 
maxim  "  that  the  law  favors  wills  "  criticised      ....       450,  451 

caveat  as  to  notice  of  probate 515 

probate,  form  of,  in  early  records 515,  516 

singular  devises  and  clauses  in  early  wills •  .     .     516 

testamentary  guardians 506,  507,  520 

WITNESSES    TO   WILLS, 

need  not  all  subscribe  at  the  same  time  (this  doctrine  criticised)     448 

WORDS. 

(See  Devise,  Give,  Fee,  Succession.) 


Cambridge :  Press  of  John  Wilson  «&  Son. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  766  155    6 


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